asean social enterprise structuring guide · 2018. 3. 8. · 3 asean s e s g social...
TRANSCRIPT
![Page 1: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/1.jpg)
ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE
FEBRUARY 2018
REUTERS/BEAWIHARTA
![Page 2: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/2.jpg)
2 ASEAN Social Enterprise Structuring Guide
JOINT FOREWORD ……………………………………………………………………………………… 3
FOREWORD ……………………………………………………………………………………………… 5
ACKNOWLEDGMENTS ………………………………………………………………………………… 6
ABOUT THE BRITISH COUNCIL …………………………………………………………………… 7
ABOUT UNITED NATIONS ESCAP ……………………………………………………………… 8
ABOUT THE BRITISH COUNCIL’S PARTNERSHIP WITH THE UNITED NATIONS ESCAP …………………………………………………………… 9
ABOUT THE THOMSON REUTERS FOUNDATION ……………………………………… 10
ABOUT TILLEKE & GIBBINS …………………………………………………………………………11
INTRODUCTION ……………………………………………………………………………………… 12
DISCLAIMER …………………………………………………………………………………………… 15
CAMBODIA ……………………………………………………………………………………………… 16
INDONESIA ……………………………………………………………………………………………… 45
LAO PDR ………………………………………………………………………………………………… 84
MALAYSIA …………………………………………………………………………………………… 108
MYANMAR ……………………………………………………………………………………………… 132
PHILIPPINES ……………………………………………………………………………………………158
THAILAND ………………………………………………………………………………………………189
VIETNAM ……………………………………………………………………………………………… 226
table of contents
![Page 3: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/3.jpg)
3 ASEAN Social Enterprise Structuring Guide
Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a
range of factors.
In Vietnam, Cambodia and Lao People’s Democratic Republic (Lao PDR), a decline in grants from
international donors has spurred non-governmental organisations (NGOs) and non-profits to
develop revenue-generating activities, to make up for the aid shortfall and explore innovations in
addressing social challenges. In Malaysia, the government seeks to deliver public services more
efficiently and innovatively. In March 2017, they launched a Social Outcomes Fund designed to
provide finance for social enterprises to deliver preventative interventions and social services that
support marginalised communities. In Indonesia and the Philippines, social entrepreneurship is
increasingly seen as a mechanism to generate employment for young people, raise farmer incomes
and empower rural communities. In Thailand, one of the region’s “early adopters,” government views
social entrepreneurship as an opportunity to ensure that more people can benefit from the sustained
economic growth of the past two decades. Although social entrepreneurship is a more recent trend
in Myanmar, the concept is rapidly gaining ground and the country has seen remarkable innovations
in the past few years. Right across the Association of Southeast Asian Nations (ASEAN) region, social
entrepreneurship is being recognised as an approach to reduce widening income inequality, address
environmental degradation and empower women and girls.
The biggest factor is the emergence of social entrepreneurs themselves, many of them young, who
have stepped up to develop financially self-sustaining solutions to address social and environmental
challenges in their communities. This singular type of leader operates across the public, private and third
sectors and balances the imperative of creating social impact with the need for financial sustainability.
The business model that many social entrepreneurs employ to deliver impact is social enterprise.
Although the idea that business can and should play a positive role in the community has deep roots in
all ASEAN countries, the contemporary social enterprise business model is less well established.
As they build their enterprise from inception to launch and then to growth stage, many social
entrepreneurs are receiving assistance from an increasing body of support organisations, including
United Nations Economic and Social Commission for Asia and the Pacific (ESCAP), Tilleke & Gibbins,
TrustLaw, Thomson Reuters Foundation, and the British Council, which have provided access to training
and funding opportunities, conducted research to identify opportunities and challenges for social
enterprises, fostered academic collaboration on social enterprise and advised governments on policies
that promote the growth of social enterprise and social impact investment. At the same time and to
varying degrees, government in the region have started to develop support for social enterprises.
The regulatory framework for social enterprises varies between countries but with notable exceptions
such as Vietnam, there is no specific legal framework in most ASEAN nations for organisations that
simultaneously carry out profit-generating business activities while pursuing a social mission. In Lao
joint foreword
![Page 4: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/4.jpg)
4 ASEAN Social Enterprise Structuring Guide
PDR establishing a business can be challenging, and none of the available legal forms are a perfect match for
social enterprise. In Indonesia, there is a rigid divide between for-profit organisations and those with humanitarian
objectives, posing an obstacle to nascent social enterprises. Thailand offers a number of favourable benefits
including substantial tax exemptions to social enterprises, but qualifying as a social enterprise is not easy.
Even in countries with a definition of social enterprise under the law, social entrepreneurs must weigh the
various options available for corporate formation and make sure they are well-informed about the legal and tax
implications of each. Furthermore, legal advice is prohibitively expensive for almost all social enterprise leaders
in the region; and legal expertise is limited in the areas of social enterprise and social investment.
This free guide will help social entrepreneurs better understand the complexities of setting up a social enterprise
in eight ASEAN countries, the options that are available to them, and the pros and cons of different legal forms.
By providing detailed information on different legal structures that social enterprises can employ this guide
offers well informed advice on registering with ministries, the documentation that is required and the licenses
and permits needed to carry out certain business activities. It outlines governance and regulatory obligations
and provides guidance on the taxes that apply to such organisations and expenses that are tax deductible. Case
studies are also included to illustrate how social enterprises have responded to specific challenges.
We believe that this resource will encourage the establishment of more social enterprises in the region, as it
clearly outlines structuring options and legal frameworks in each jurisdiction. It will help support aspiring and
practising social entrepreneurs, as well as the organisations that support them, to achieve their ambitions of
delivering positive change in their communities.
This guide, we hope, will act as a valuable resource to be used and referred to by social enterprise leaders and
social investors, by incubators and accelerators, as well as by universities and think tanks. This guide can also
serve as a practical learning tool for training programmes. We will promote its use to foreign social entrepreneurs
and social investors who are interested in setting up operations in Southeast Asia. It will also be useful for social
entrepreneurs within the ASEAN region who are looking to scale to and incorporate in other parts of the region.
At the same time, we hope that this guide will help to spark a more detailed conversation across the ASEAN
region about the approaches that individual countries are taking to support the growth of social entrepreneurship
and about how the regulatory environment as a whole can be adapted to better support social entrepreneurs to
achieve more impact. This in turn will support the work that our organisations do to advise governments on social
enterprise policy and to promote understanding of existing legal barriers and the creation of more supportive
legal and policy environments. And in doing so, it will advance our shared commitment to supporting progress
on the Sustainable Development Goals and to fostering more inclusive and sustainable development in ASEAN.
This guide would not have been possible without the contributions and expertise of a number of organisations to
which we hereby express our gratitude. They include:
British Council
Tilleke & Gibbins
United Nations ESCAP
![Page 5: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/5.jpg)
5 ASEAN Social Enterprise Structuring Guide
Around the world, social entrepreneurship is thriving. More and more organisations are taking a
market-based approach to find sustainable solutions and have a positive social impact. Southeast
Asia is no exception: investment continues to blossom, and individuals and organisations that support
the space are finding new and diverse ways to help the growing number of social entrepreneurs.
In the last few years, governments in the region have started to play an increasingly active role in
supporting the sector’s evolution.
The Thomson Reuters Foundation has always championed the emerging impact economy. A key
priority for TrustLaw, the Thomson Reuters Foundation’s global pro bono service, is to support
innovative organisations who are addressing environmental, humanitarian and social problems
across the globe. We are continuously inspired at the passion, innovation and resilience of these
businesses. Our work in Southeast Asia continues to prove that social entrepreneurs are at the
forefront of driving change and creating social impact. We know all too well, that the legal structure
they choose for their venture can have a significant bearing on their ability to achieve social change.
As the lines between ‘doing good’ and running a commercial business continue to blur, new and
innovative ways of structuring social ventures are now common practice in Southeast Asia. However,
identifying the right structure for a social venture in Southeast Asia can feel like an impossible task.
This guide is designed to help social entrepreneurs navigate their way through the different options
available to them, and to act as a resource for lawyers and other advisers to social entrepreneurs
lending their expertise to help.
Recognising the legal and regulatory challenges for the social enterprise model in the region, this
guide covers the range of legal structures that social entrepreneurs can take advantage of, for
their social ventures in eight jurisdictions in Southeast Asia. The guide identifies the advantages
and disadvantages of each structure and sets out the relevant registration procedures, regulatory
and governance considerations, tax treatment as well as finance and fundraising options – an
understanding of all of this is so crucial to ensuring the sustainability, good governance and success
of a social venture.
We are proud of this resource and hope the guide is a valuable tool to support social entrepreneurs
across Southeast Asia who are shaping the future of the social impact space. We also wish to
acknowledge the outstanding effort and extensive resources that our partners provided in preparing
this Guide, including those who kindly agreed to be featured.
Nicholas Glicher – Director, TrustLaw
Thomson Reuters Foundation
foreword
![Page 6: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/6.jpg)
6 ASEAN Social Enterprise Structuring Guide
AcknowledgementsThis guide would not have been possible without the contributions and expertise of a number
of organisations. British Council, the Thomson Reuters Foundation and the United Nations
ESCAP wish to express their gratitude to the team at Tilleke & Gibbins for donating their time and
expertise to this project. The TrustLaw team is especially grateful to the lawyers who contributed
to the research and the coordination of this guide.
We express our gratitude to the following law firms who contribution to the country specific
research was invaluable:
Coordinating Law firm:
Tilleke & Gibbins
Law firm by chapter:
Tilleke & Gibbins (Cambodia, Laos, Myanmar, Thailand, Vietnam)
Christopher & Lee Ong (Malaysia)
Oentoeng Suria & Partners in association with Ashurst (Indonesia)
Romulo Mabanta Buenaventura Sayoc & de Los Angeles (the Philippines)
Local partners:
Cambodia: ImpactHub Phnom Penh
Indonesia: UnLtd & Socolas
Malaysia: MaGIC Social Entrepreneurship
Myanmar: MBE Myanmar Business Executives Association
The Philippines: Philippine Social Enterprise Network (Phil-SEN)
Thailand: Thai Social Enterprise Office (TSEO)
Vietnam: Central Institute for Economic Management (CIEM)
![Page 7: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/7.jpg)
7 ASEAN Social Enterprise Structuring Guide
The British Council is the United Kingdom’s international organisation for educational opportunities
and cultural relations.
Through our Global Social Enterprise programme, we promote the development of social
entrepreneurship to help address entrenched social and environmental problems and deliver
positive change in our communities and societies.
Our work draws on UK experience and expertise and is delivered across 29 countries with local and
international partners.
Together, we provide social entrepreneurs with access to training, mentoring and funding
opportunities and promote social enterprise education in schools and universities. We convene
policy dialogues, organise study tours and conduct research to share knowledge and best practice in
scaling social enterprise and social investment. We also deliver international development projects
that promote the growth of social entrepreneurship.
It is a systemic approach designed to help foster a more sustainable, inclusive and prosperous
future and build collaboration, opportunities and trust between the UK and other countries.
Twitter: @SocEntGlobal
About the British Council
![Page 8: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/8.jpg)
8 ASEAN Social Enterprise Structuring Guide
About United Nations ESCAP
The Economic and Social Commission for Asia and the Pacific (ESCAP) serves as the United
Nations’ regional hub promoting cooperation among countries to achieve inclusive and sustainable
development. The largest regional intergovernmental platform with 53 member States and 9
associate members, ESCAP has emerged as a strong regional think-tank offering countries sound
analytical products that shed insight into the evolving economic, social and environmental dynamics
of the region. The Commission’s strategic focus is to deliver on the 2030 Agenda for Sustainable
Development, which it does by reinforcing and deepening regional cooperation and integration to
advance connectivity, financial cooperation and market integration. ESCAP’s research and analysis
coupled with its policy advisory services, capacity building and technical assistance to governments
aims to support countries’ sustainable and inclusive development ambitions.
![Page 9: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/9.jpg)
9 ASEAN Social Enterprise Structuring Guide
The British Council and the United Nations Economic and Social Commission for Asia and the
Pacific (ESCAP) have a collaborative agreement to promote the growth of social enterprise and
social impact investment across the Asia-Pacific region as a means of supporting progress on the
Sustainable Development Goals (SDGs).
These two partners cooperate to provide research, analysis, training, policy dialogues and offer
guidance to support policy makers and other stakeholders in formulating and implementing
policies and strategies that foster social enterprise and create enabling environments for social
impact investment.
At the Social Enterprise World Forum 2017 in Christchurch, New Zealand, these two organisations
convened a policy dialogue that brought together ministers and senior government officials from
17 countries and produced the Asia-Pacific Declaration on Social Enterprise and Impact Investment
which enjoins the partners as well as leading global and regional organisations (Social Enterprise
World Forum (SEWF), the Global Steering Group for Impact Investment, the Global Social
Entrepreneurship Network, the Asian Venture Philanthropy Network, and the Ākina Foundation) to
build a community of leaders across the Asia-Pacific with the aim of sharing experience and pooling
expertise around the growth of social enterprise and impact investment.
In support of this agenda, the British Council and ESCAP endeavour to increase collaboration and
participation by all stakeholders in Asia and the Pacific and to design programmes and policies
that are contextually relevant to the region. Their aim is to support countries to promote social
innovation, inclusion, sustainable job creation, and address some of the social and environmental
challenges the region faces through private sector models.
Social enterprises harness trade, investment and business activity towards social and environmental
objectives and are increasingly recognized as critical drivers of innovation for sustainable
development. A growing body of research indicates that social enterprises are creating jobs for
disadvantaged groups, empowering women and young people, and addressing social exclusion
across the Asia-Pacific region.
About the British Council’s partnership with the United Nations ESCAP
![Page 10: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/10.jpg)
10 ASEAN Social Enterprise Structuring Guide
The Thomson Reuters Foundation acts to promote socio-economic progress and the rule of law
worldwide. The Foundation runs initiatives that inform, connect and ultimately empower people
around the world: access to free legal assistance, media development and training, editorial
coverage of the world’s under-reported stories and the Trust conference.
TrustLaw is the Thomson Reuters Foundation’s global pro bono legal programme. We connect
high-impact NGOs and social enterprises working to create social and environmental change with
the best law firms and corporate legal teams to provide them with free legal assistance. With a
presence in over 175 countries, we support more than 3,500 organisations with free legal assistance.
Our free legal service enables NGOs and social enterprises to streamline operations, expand into
new countries and scale their impact. This helps them focus on their mission without spending
valuable resources on their legal needs. TrustLaw also produces a wide range of tools to help NGOs
and social enterprises address their legal needs and support their advocacy efforts.
35% of TrustLaw’s members are classified as social enterprises. As well as connecting them to law
firms able to provide free legal services, we work in partnership with social enterprise incubators
and other intermediaries to ensure our work has the widest possible reach. TrustLaw is not only
helping these organisations to secure a solid legal footing, but also supports the development of
the wider social enterprise and social finance ecosystem, allowing them to be sustainable. TrustLaw
is committed to providing a suite of guides, resources, interactive tools and training, all designed to
make it as easy as possible for social entrepreneurs to achieve their goals.
To learn more, take a look at our Social Innovation page at www.trust.org .
About the Thomson Reuters Foundation
![Page 11: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/11.jpg)
11 ASEAN Social Enterprise Structuring Guide
Tilleke & Gibbins is a leading regional law firm in Southeast Asia. With 150 lawyers and consultants
in Bangkok, Hanoi, Ho Chi Minh City, Jakarta, Phnom Penh, Vientiane, and Yangon, we represent
the top investors and the high-growth companies that drive economic expansion in Asia in the key
areas of commercial transactions and M&A, corporate services, dispute resolution and litigation,
and intellectual property. Established in 1890, we have grown into the largest independent law firm
in Thailand and a leading international firm in Cambodia, Indonesia, Laos, Myanmar, and Vietnam
due to our client focus, regional expertise, and international vision.
Tilleke & Gibbins’ lawyers and staff are dedicated to being valuable members of the communities
in which we live and do business. We proudly commit resources to targeted initiatives that support
justice, education, culture, and the environment, whether through our extensive pro bono initiatives,
academic scholarship programs, online library of free-to-access legal resources and publications,
or our Museum of Counterfeit Goods and Southeast Asian Textile Collection (both of which are open
to the public free-of-charge). In all of these endeavours, as with our legal advice and representation,
we value sustainability above all else and ensure that any contribution we make has an enduring
and tangible effect on those we work with.
About Tilleke & Gibbins
![Page 12: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/12.jpg)
12 ASEAN Social Enterprise Structuring Guide
CAMBODIACambodia is often seen as a very favourable environment for humanitarian efforts, having the
second largest number of NGO’s per capita of any country on earth. Furthermore, all of those NGOs
were formed (or entered the jurisdiction) under a legal system being rebuilt following its wholesale
disassembly under the Khmer Rouge. As such it is true that corporate legislation has developed in a
uniquely fertile environment for humanitarian endeavours. That said, there is no specific definition of
social enterprise under the law, and social entrepreneurs must therefore weigh up the various different
options available for corporate formation. In addition, Cambodian law can be challenging to navigate,
and any social enterprise should thus have a good understanding of the various legal requirements
and allowances that go with their business operations, and corporate structure, to avoid falling foul
of the law.
INDONESIASocial enterprise is a growing field in Indonesia, building on a pre-existing culture of community support
and having increasingly caught the public’s attention since the empowering political reforms that have
taken place in the country since 1999. Nevertheless, support for social enterprises generally comes
from the existing non-profit sector and the government is yet to take up the charge, maintaining a rigid
divide between for-profit organizations and those with a humanitarian bent. The law can therefore
pose an obstacle to nascent social enterprises, with no clear legal structure available in Indonesian
law that meets all the needs of a social enterprise. Social entrepreneurs must therefore have a good
understanding of the structures available to them so that they can take a creative approach to fitting
their goals into the legal structures available for operating in Indonesia.
LAO PEOPLE’S DEMOCRATIC REPUBLICIn Lao PDR the legal system was entirely repealed and rewritten following the accession of the ruling
party in 1975, and then heavily reformed from 1986 onwards with the adoption of a market economy.
Establishing a business of any sort in Lao PDR can therefore raise some particular challenges, and
none of the legal options which are available are a perfect match for the social enterprise model.
However, there are legal options which can be adapted to suit these needs, both through for-profit and
non-profit structures, and the benefits which social enterprise can bring are perhaps more significant
in Lao PDR than in other jurisdictions in the region. Poverty alleviation and human development are
key priorities of the government, but the sector experiences a lack of funding and human resources,
and does not benefit from the international attention which other developing countries in the region
have. This has left substantial gaps in the voluntary sector that social enterprises are very well
equipped to fill.
Introduction
![Page 13: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/13.jpg)
13 ASEAN Social Enterprise Structuring Guide
MALAYSIAHigh levels of economic development and a large, well-educated, socially conscious middle class have fuelled
a well-developed social enterprise sector in Malaysia. Enterprises receive strong support, and a number of
organizations exist throughout the country, which are dedicated to supporting social entrepreneurs and their
businesses, many of which receive government support and funding. However, similar to other countries in the
region, there are no specific legal provisions for social enterprise in Malaysia, and those wishing to set up such
a business must make sure they are well-informed about the legal structures available to them under the law.
MYANMARDespite being a least developed country Myanmar has had the distinction of being ranked as the world’s most
charitable country every year since 2014 in the Charities Aid Foundation’s annual World Giving Index. It is
perhaps no surprise then that social enterprise, although a relatively new phenomenon, is proving extremely
popular. Innovative approaches to commercial enterprises motivated by community development are becoming
increasingly common in major cities. A reform program for modernizing Myanmar’s legal system is currently
underway, but for now the options available to social entrepreneurs remain limited to more traditional business
structures.
PHILIPPINESSocial enterprise is a well-established economic sector in the Philippines, and is dynamic, vibrant, and innovative.
University degrees in social enterprise are available from some of the leading Philippine universities, well-
established formal support networks prop up the sector and those seeking to enter it, and at the time of writing
there are over 160,000 social enterprises estimated to be operating in the country. There is also a drive to provide
significant support for social enterprises through formal legislation, with a bill currently being considered by the
Senate which, if passed, would create a statutory Social Enterprises Development Council to promote, grow, and
develop the social enterprise sector. Social enterprises therefore already benefit from a supportive and beneficial
environment, and appear to have an increasingly bright future ahead.
THAILANDIf a social enterprise is able to meet the legal criteria for a social enterprise then Thailand is an extremely friendly
legal environment to operate in. Consecutive Thai governments have been enthusiastically in favour of social
enterprise for over a decade, and the concept has been codified into law since 2011. Companies that meet the
legal criteria are entitled to a raft of favourable benefits including, as of 2016, substantial tax exemptions.
In addition, the National Reform Council is actively pursuing a number of other initiatives related to social
enterprise, including education, research, and funding program, and the enthusiasm for social enterprise is likely
to continue as the government transitions back to democracy over the coming years. Although qualifying as a
social enterprise is not easy, for those that do so, the situation is very supportive and bound to improve.
![Page 14: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/14.jpg)
14 ASEAN Social Enterprise Structuring Guide
VIETNAMThe concept of social enterprise was introduced into Vietnamese law in 2015, and is applicable to businesses
which invest at least 51 percent of their profits in accomplishing a registered social or environmental objective.
They typically operate as either single-member limited liability companies, multiple-member limited liability
companies, or shareholding companies, and are entitled to be “considered for special treatment,” in a number of
administrative and regulatory processes. In addition, being classified as a social enterprise in Vietnam can entitle
companies to a number of funding options that would otherwise be unavailable. The social enterprise system in
its current form has been well-received, and the government continues to encourage and support them.
![Page 15: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/15.jpg)
15 ASEAN Social Enterprise Structuring Guide
Thomson Reuters Foundation, British Council, Tilleke & Gibbins and United Nations ESCAP have
created this Guide purely to inform and to assist its readers in learning more about legal vehicles
used by non-profit (charitable) and/or socially driven businesses. The contents of this Guide are for
information purposes and to provide an overview only.
This Guide does not provide legal information on all corporate forms available and is current as of
February 15, 2018. Although we hope and believe this Guide will be helpful as background material,
we cannot warrant that it is accurate or complete, particularly as circumstances change after
publication.
This Guide must be considered as an overview only. It does not constitute legal advice and should
not be relied on as such. This Guide is general in nature and may not apply to a particular factual
or legal circumstance faced by a social or philanthropic venture. To address a specific situation, it is
always recommended to seek independent legal advice.
All copyright and other intellectual property rights in all text and other materials in this Guide
are owned by Thomson Reuters Foundation, British Council, Tilleke & Gibbins and United Nations
ESCAP or are included with permission of the relevant owner. You are permitted to browse the
electronic version of this Guide and to print or download a copy to a hard disk. You are not permitted
to reproduce, sell or distribute any part of this Guide for commercial purposes, nor shall it be
modified or incorporated in any other work, publication or site. No other license or right is granted.
disclaimer
![Page 16: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/16.jpg)
16
REUTERS/SAMRANG PRING
16
cambodia
![Page 17: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/17.jpg)
17 ASEAN Social Enterprise Structuring Guide
INTRODUCTION As a social enterprise can be for-profit or not–for-profit, there are a number of different structures
which they can pursue under Cambodian law. The most popular of these are associations and NGOs,
which are more numerous in Cambodia than almost anywhere else in the world, and these offer a
very attractive structure for social enterprises that are not concerned with shareholder or board
member profits. However, it is also worthwhile to carefully consider a number of other corporate
structures: namely sole proprietorships, partnerships, limited companies, and representative offices
of foreign companies, when deciding how to form such a venture.
Regardless of the company structure chosen, there are a number of provisions which apply to any
organizations. Labor law requirements, for example, require all businesses to store a copy of the
labor law, report staff turnover, and maintain an enterprise register and payroll book. If a business
employs at least eight employees, it must also establish and register an internal code of conduct
and participate in the National Social Security Fund schemes.
Any business located in Phnom Penh and engaging in any of the following sectors must register
with the Ministry of Labor and Vocational Training: garment, textile and footwear manufacturing,
industry, enterprises that recruit labor to work overseas, construction, hotel, banking, aviation,
and maritime businesses. Depending on the number of employees, the registration fee is between
KHR 80,000 (approx. USD 20) and KHR 1 million (approx. USD 250). This is in addition to any
requirement to register with the municipal/district Office of Labor and Vocational Training.
Many business activities require other special licenses or permits that are issued by a range of
ministries and local authorities, and these should be checked before establishment.
In respect of tax, the expenses of a social enterprise are only tax-deductible against revenues
relating to business operations. For example, a social enterprise that rescues homeless people from
the streets and teaches them to work in a restaurant or hotel might be able to deduct the costs of
the job training from business revenue, but it probably may not deduct the costs of providing shelter
or other assistance that is not related to the business operation.
These are just some examples to illustrate that there may be other legal implications of operating
a business in Cambodia (and indeed any other jurisdiction) beyond the considerations of company
setup and governance, and advice on those relevant to your business should be sought before
doing business. This chapter is merely intended as an overview (albeit a thorough overview) of the
company structures available.
cambodia
![Page 18: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/18.jpg)
18 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 1 – SOLE PROPRIETORSHIPSa. Overview
A sole proprietorship is a business that is owned by one individual. It is the simplest form of business.
It has no legal status separate from its owner, so its owner is wholly responsible for financing and
managing the business. The sole proprietorship is a structure often employed for small businesses.
b. Advantages and disadvantages
Advantages:
√√ A sole proprietorship is subjected to minimal formalities, making it easy and inexpensive to form and operate.
√√ The owner of a sole proprietorship has full and direct control over all aspects of the business, and gets to keep all of the profits.
Disadvantages:
√: Sole proprietorships’ main sources of capital are limited to the owner’s personal and borrowed capital.
√: The owner of a sole proprietorship is wholly liable for all of the business’s debts and other obligations, because there is no legal distinction between the business and its owner.
√: A sole proprietorship ends if its owner dies. If the assets of a sole proprietorship are inherited or transferred, a new sole proprietorship is formed.
c. Establishment process, documentation and costs
Establishing a business as a sole proprietorship requires very little paperwork. Sole proprietorships that
are subjected to tax on profit must register with the Ministry of Commerce (MOC). Under current tax law,
these are sole proprietorships that qualify as self-assessed regime taxpayers (SART) (see Section (e) below).
Registration of the business can be performed online or physically at the Business Registration Department of
the MOC. The registration fee for a sole proprietorship is just KHR 340,000 (approx. USD 85), which is lower
than the registration fee for other business forms. The required documents are:
• a document proving the address of the business (e.g., utility bills, rental agreement, etc.);
• a certified copy of the owner’s identity card or passport;
• a photo (4x6 inch) of the owner; and
• a declaration by the owner that he/she has not been convicted in a business, civil, or criminal case, and
is not a civil servant.
After registering with the MOC, the sole proprietorship must register its business address with the city or
provincial municipality where the business is located.
Sole proprietorships that are not subjected to tax on profit have to obtain a business permit from the
Provincial/Municipal Department of Commerce. Under current tax law, these are sole proprietorships that do
not qualify as a SART (see Section (e) below). This permit can be obtained at the One Window Service office in
![Page 19: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/19.jpg)
19 ASEAN Social Enterprise Structuring Guide
the province or district where the sole proprietorship is located, with a government fee of KHR 25,000 (approx.
USD 7.50). The permit is valid for one year and can be renewed. The required documents are:
• the application form;
• a copy of the owner’s identity card or passport;
• a copy of patent tax certificate (if any);
• three photos (4x6 inch) of the owner; and
• a contract declaring that the business will comply with all laws and regulations of Cambodia.
In addition, all sole proprietorships must register with the General Department of Taxation (GDT) within 15
days of commencing their business activities or after registering with the Provincial/Municipal Department
of Commerce or the MOC, whichever is earlier. If the sole proprietorship is a medium or large taxpayer
(see Section (e) below), the registration fee at the GDT is KHR 400,000 (approx. USD 100). Otherwise, the
registration fee at the GDT is KHR 20,000 (approx. USD 5). The amount of paperwork required varies among
the different categories of taxpayers.
Lastly, the sole proprietorship must register with the Municipal/Provincial Department of Labor and Vocational
Training before commencing business operations
d. Liabilities
The owner of a sole proprietorship has unlimited liability for all of the business’s actions and debts. If the
sole proprietorship cannot pay its debts or meet its obligations, the owner’s personal assets may be seized to
satisfy the creditors’ claims.
e. Tax treatment
The tax treatment of a sole proprietor depends on whether the proprietorship falls in one of the three categories
of a self-assessed regime taxpayer (SART):
• Small taxpayer: if the proprietorship’s annual turnover equals or exceeds KHR 250 million (approx.
USD 62,500), or its previous or expected turnover for three consecutive months equals or exceeds
KHR 60 million (approx. USD 15,000), or it participates in any bidding or quotation for supply of goods
or services.
• Medium taxpayer: if the proprietorship’s annual turnover exceeds KHR 700 million (approx. USD
175,000).
• Large taxpayer: if the proprietorship’s annual turnover exceeds KHR 2 billion (approx. USD 500,000).
If the sole proprietorship does not qualify as a SART, it does not need to pay or collect various taxes, including
the following:
![Page 20: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/20.jpg)
20 ASEAN Social Enterprise Structuring Guide
Tax on profit
Sole proprietorships that qualify as small taxpayers enjoy simpler accounting requirements and are taxed on
annual profit as follows:
Profit (KHR) USD (equivalent) Tax rate (percent)
0 to 12,000,000 0 – 3,000 0
12,000,001 – 18,000,000 3,001 – 4,500 5
18,000,001 – 102,000,000 4,501 – 25,500 10
102,000,001 – 150,000,000 25,501 – 37,500 15
Above 150,000,000 Above 37,500 20
Sole proprietorships that quality as small taxpayers have tax advantages over most limited companies, which
are subjected to a flat 20 percent tax on profits, since they pay less than 20 percent on profits under KHR 150
million (approximately USD 37,500). However, sole proprietorships that qualify as medium or large taxpayers
are taxed in the same way as a limited company.
The expenses of a social enterprise are only tax-deductible against revenues relating to business operations.
For example, a social enterprise that rescues homeless people from the streets and teaches them to work in
a restaurant or hotel might be able to deduct the costs of the job training from their business revenue, but it
probably may not deduct the costs of providing shelter or other assistance that is not related to the business
operation.
Gifts and donations are generally non-deductible expenses. Charitable contributions are generally deductible
if (1) they are made to registered organizations, which serve religious, charitable, scientific, literary, or
educational purposes with no part of the assets or earnings used for private interest, and (2) to the extent that
they do not exceed 5 percent of the enterprise’s taxable profit.
Patent tax
The annual patent tax is currently payable at the following rates, per business activity and location:
• Small taxpayer: KHR 400,000 (approx. USD 100)
• Medium taxpayer: KHR 1,200,000 (approx. USD 300)
• Large taxpayer: KHR 3 million (approx. USD 750) or KHR 5 million (approx. USD 1250), depending on
revenue and other criteria of the GDT
Value-added tax (VAT)
VAT is imposed at a rate of 10 percent on supply of most goods and services. VAT is not applicable to exported
goods and services consumed abroad. Sole proprietorships that qualify as small taxpayers are allowed to
claim 80 percent of input VAT, except for supply of gold, diamond, gems, and money exchange.
Minimum tax
Minimum tax is an annual tax imposed at the rate of 1 percent on the sole proprietorship’s annual turnover,
inclusive of all other taxes except VAT. Minimum tax is payable instead of tax on profit if it is higher than the
tax on profit.
![Page 21: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/21.jpg)
21 ASEAN Social Enterprise Structuring Guide
Withholding taxes
Sole proprietorships that qualify as medium or large taxpayers are required to withhold and transmit taxes
at rates of 4-15 percent to the GDT on many payments, such as rentals, various services performed by an
individual person, interests, royalties for intangible properties, and interest in minerals. Sole proprietorships
that qualify as small taxpayers are only required to withhold taxes on rental payments.
f. Ongoing governance and regulatory obligations
Subject to applicable licensing requirements, a social enterprise established as a sole proprietorship may
engage in any permitted business activities alongside its charitable activity. There is no specific governance
or formality required. The owner has full direct discretion over how the sole proprietorship should operate.
Any changes to the name, ownership, business objective, legal form, or address of the business must be
filed with the GDT and, depending on where the business is registered, the MOC or the Provincial/Municipal
Department of Commerce. Sole proprietorships that qualify as SARTs have to issue invoices for all transactions,
fulfill all monthly and annual tax filing requirements, and keep accounting records and supporting documents
for at least 10 years.
g. Corporate structure
Sole proprietorships do not face statutory corporate structures or formalities.
h. Governance
A sole proprietorship can have only one owner. The owner must be a natural person (not a corporation or other
legal entity), and the owner can be any nationality. If additional owners are added to the business, the sole
proprietorship must change its legal form to a partnership.
i. Finance and fundraising
A sole proprietorship’s capacity to raise capital is quite limited compared to partnerships and limited
companies. Its sources of capital are limited to the assets of the owner and the capital the owner is able to
borrow in his personal capacity from friends, relatives, and financial institutions. Any gifts and grants received
by a sole proprietorship must be included in its taxable income for the period in which the gift or grant was
received.
When a sole proprietorship borrows money, interest payments made by the proprietor are deductible to the
extent they do not exceed the sum of the proprietorship’s total interest income plus 50 percent of the net non-
interest income.
If the initial or future financial needs of the business cannot be sustained solely by the owner, the business
should probably be structured as a partnership or a limited company instead of a sole proprietorship.
j. Resources
https://www.businessregistration.moc.gov.kh/application-for-registration/
http://www.tax.gov.kh/en/taxtypes.php
http://www.doingbusiness.org/data/exploreeconomies/cambodia/starting-a-business/
https://cambodia.tax.gov.kh/
![Page 22: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/22.jpg)
22 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 2 – PARTNERSHIPSa. Overview
A partnership is similar to a sole proprietorship, but has more than one owner. It is formed by an
agreement between two or more partners, who pool together their knowledge, skills, capital, and other
resources to conduct business with a common view toward achieving profits. Partners are prohibited
by law from receiving a wage for their work with the partnership, and unless agreed otherwise, the
partners share the profits equally. Although a partnership obtains distinct legal personality from the
partners upon registration with the Ministry of Commerce (MOC), the partners still have unlimited
liability for the debts of the partnership.
b. Advantages and disadvantages
Advantages:
√√ Partners share responsibiliy for management, profits, and losses of the partnership.
√√ Partners usually bring an enhanced mix of skills and knowledge to the partnership.
√√ More partners bring in more capital to the partnership.
Disadvantages:
√: Conflicts may arise among partners when they have different opinions on how the business should be operated.
√: All partners are jointly and severally liable for all of a partnership’s debts and other obligations.
c. Establishment process, documentation and costs
Many partnerships are informal and lack a written partnership agreement. However, by law the partners are
required to begin their partnership with a written partnership contract, which should stipulate, among other
things, the amount and type of each partner’s contribution, each partner’s responsibilities, how the profits and
losses are shared, the management role of each partner, decision-making and voting rights, the procedure
for adding and removing partners, the transfer of a partnership interest, dispute resolution, remedies, and
termination.
Partnerships must register with the MOC, and each partner is individually responsible for that task. The
registration can be performed online or physically at the Business Registration Department of the MOC. The
registration fee is currently KHR 1.72 million (approx. USD 430). The documents required are:
• a document proving the address of the business (e.g., utility bills, rental agreement, etc.);
• the partnership agreement;
• certified copies of identity cards or passports of partners and managers;
• photos (4x6 inch) of the partners and managers; and
• a declaration by the manager that he/she has not been convicted in a business, civil or criminal case,
and is not a civil servant.
![Page 23: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/23.jpg)
23 ASEAN Social Enterprise Structuring Guide
If a partner is a legal entity, they will also require:
• a certified copy of that partner’s business registration certificate; and
• a copy of the resolution to invest in the partnership and to appoint the shareholder representative.
Within 30 days of receiving its commercial registration certificate, the partnership must deliver two original
copies of the partnership agreement to the Business Registration Department. If a partner is a legal entity,
they must also provide the original resolution to invest in the partnership and to appoint the shareholder
representative.
After registering with the MOC, the partnership must register its business address with the city or provincial
municipality where the business is located.
In addition, partnerships must register with the General Department of Taxation (GDT) within 15 days after
commencing business activities or receiving their registration certificate from the MOC, whichever is earlier.
If the partnership qualifies as a medium or large taxpayer (see Section (e) below), the registration fee at the
GDT is KHR 400,000 (approx. USD 100). If the partnership qualifies as a small taxpayer, the registration fee
at the GDT is KHR 20,000 (approx. USD 5). The amount of paperwork required varies among the different
categories of taxpayers.
Lastly, partnerships must register with Municipal/Provincial Department of Labor and Vocational Training
before commencing business operations.
d. Liabilities
Regardless of whether a partnership fulfills its duties to have a written partnership agreement and to register,
each partner has unlimited liability for the debts and other obligations of a partnership. These liabilities can
include, for example, liabilities resulting from contract claims, employee claims, and negligence claims (torts).
Thus, each partner risks his/her personal property and savings if the partnership cannot fulfill its obligations.
If a partnership admits a new partner, that partner is not liable for pre-existing partnership obligations.
However, a new partner’s contributions may be used to repay pre-existing partnership debts.
e. Tax treatment
The tax treatment of a partnership depends on whether it falls in one of the three categories of a self-assessed
regime taxpayer (SART). There are three levels of SART: small, medium, and large taxpayer.
• Small taxpayer: if the partnership’s annual turnover equals or exceeds KHR 250 million (approx. USD
62,500), or its previous or expected turnover for three consecutive months equals or exceeds KHR
60 million (approx. USD 15,000), or it participates in any bidding or quotation for supply of goods or
services.
• Medium taxpayer: if the partnership’s annual turnover exceeds KHR 700 million (approx. USD 175,000),
or one or more partners are a legal person (instead of an individual).
• Large taxpayer: if the partnership’s annual turnover exceeds KHR 2 billion (approx. USD 500,000).
![Page 24: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/24.jpg)
24 ASEAN Social Enterprise Structuring Guide
If the partnership does not qualify as a SART, it does not need to pay or collect various taxes, including the
following:
Tax on profit
Partnerships that qualify as small taxpayers enjoy simpler accounting requirements and the profits of each
partner are taxed as follow:
Profit (KHR) USD (equivalent) Tax rate (percent)
0 to 12,000,000 0 – 3,000 0
12,000,001 – 18,000,000 3,001 – 4,500 5
18,000,001 – 102,000,000 4,501 – 25,500 10
102,000,001 – 150,000,000 25,501 – 37,500 15
Above 150,000,000 Above 37,500 20
Partnerships that qualify as small taxpayers have tax advantages over most limited companies, which are
subjected to a flat 20 percent tax on profits, since partnerships pay less than 20 percent on profits under KHR
150 million (approx. USD 37,500). Partnerships that qualify as medium or large taxpayers are taxed in the
same way as a limited company.
The expenses of a social enterprise are only tax-deductible against revenues relating to business operations.
For example, a social enterprise that rescues homeless people from the streets and teaches them to work in
a restaurant or hotel might be able to deduct the costs of the job training from business revenue generated
by their business operations, but it probably may not deduct the costs of providing shelter or other assistance
that is not related to the business operation.
Gifts and donations are generally non-deductible expenses. Charitable contributions are generally deductible
if (1) they are made to registered organizations, which serve religious, charitable, scientific, literary, or
educational purpose with no part of the assets or earnings used for private interest, and (2) to the extent that
they do not exceed 5 percent of the enterprise’s taxable profit.
Patent tax
The annual patent tax, payable for each business activity and each location, currently equals:
• Small taxpayer: KHR 400,000 (approx. USD 100).
• Medium taxpayer: KHR 1,200,000 (approx. USD 300).
• Large taxpayer: KHR 3 million (approx. USD 750) or KHR 5 million (approx. USD 1250), depending on
revenue and other criteria of the GDT.
Value-added tax (VAT)
VAT is imposed at a rate of 10 percent on supply of most goods and services. VAT is not applicable to exported
goods and service consumed abroad. Partnerships that qualify as small taxpayers are allowed to claim 80
percent of input VAT, except for supply of gold, diamond, gems, and money exchange.
![Page 25: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/25.jpg)
25 ASEAN Social Enterprise Structuring Guide
Minimum tax
Minimum tax is an annual tax imposed at the rate of 1 percent on the partnership’s annual turnover inclusive
of all taxes, except for VAT. Minimum tax is payable instead of tax on profit if it is higher than the tax on profit.
Withholding taxes
Partnerships that qualify as medium or large taxpayers are required to withhold and transmit to the GDT
taxes at rates of 4-15 percent on many payments, such as rentals, various services performed by an individual
person, interests, royalties for intangible properties, and interest in minerals. Partnerships that qualify as
small taxpayers are only required to withhold taxes on rental payments.
f. Ongoing governance and regulatory obligations
Each partner is responsible for complying with the filing and record-keeping requirements for a partnership.
The partnership agreement and records of the partnership must contain the names, addresses, and
contributions of each partner. The partnership must submit annual declarations with the MOC, accompanied
by a government fee of KHR 80,000 (approx. 20 USD).
A partnership operates within the scope of its partnership agreement. Subject to applicable licensing
requirements, a social enterprise established as a partnership may engage in any permitted business activities
alongside its charitable activity.
Any changes to the name, ownership, business objective, legal form, and address of the business must be
filed with the GDT and the MOC. Partnerships that qualify as SARTs have to issue invoices for all transactions,
fulfill all their monthly and annual tax filings, and keep accounting records and supporting documents for at
least 10 years.
g. Corporate structure
A partnership is formed by two or more partners. The death or withdrawal of a partner does not automatically
dissolve the partnership, but if there is only one remaining partner holding all interests in the partnership, the
partnership may only continue for a maximum of 120 days.
There is no specific corporate structure required for a partnership. The partners decide on the structure, the
sharing of responsibilities, and the decision making procedures for the partnership. Partners are prohibited
from receiving wages from the partnership in addition to their shares of the profit.
h. Governance
A partner can be a natural or legal person of any nationality. If at least 51 percent of the ownership interests in a
partnership belong to Cambodian persons (natural or legal), the partnership is considered to have Cambodian
nationality. Partnerships with foreign nationality are not allowed to conduct activities that are prohibited to
foreigners, such as owning land.
Partners have the right to bind the partnership in its business dealings and are jointly and severally responsible
for losses of the partnership. Any contrary agreement between the partners is not enforceable against third
parties. Partners may allocate tasks and profits of the business through the partnership agreement. Partners
may also appoint one or more managers to manage the day-to-day affairs of the partnership.
![Page 26: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/26.jpg)
26 ASEAN Social Enterprise Structuring Guide
i. Finance and fundraising
A partner may contribute to a partnership in knowledge or skills, in-kind contributions, or money. A partnership’s
sources of capital are normally limited to the contributions of partners and capital borrowed by the partners.
Any gift or grant received by the partnership must be included in the partnership’s taxable income for the
period in which the gift or grant was received.
When a partnership borrows money, the interest payments are deductible to the extent they do not exceed the
partnership’s total interest income plus 50 percent of the net non-interest income.
Another way for partnerships to raise capital is to structure the enterprise as a limited partnership. A limited
partnership is a form of partnership composed of one or more general partners and one or more limited
partners. The general partner manages the business and has unlimited liability for the debts and other
obligations of the limited partnership, as in the case of a normal partnership. The limited partners contribute
money or property to the limited partnership, do not have any management rights, and are only liable for the
partnership’s debts to the extent of their investments. However, limited partners may incur unlimited liability
for the partnership’s obligations if they perform acts that are reserved for the general partners, or if their
names appear in the name of the partnership.
Unlike a sole proprietorship, a partnership can issue new ownership interests with the consent of existing
partners in order to increase capital. This means that partnerships can reduce the need to borrow funds by
raising capital through equity financing. Partnerships also have more ability to borrow capital than a sole
proprietorship, because there are more owners with unlimited liability to meet increased financial obligations.
Unlike a limited company, a partnership cannot offer debt or equity securities to the public or issue negotiable
instruments. Thus, partnerships have broader access to capital than sole proprietorships, but less than limited
companies.
j. Resources
https://www.businessregistration.moc.gov.kh/application-for-registration/
http://www.tax.gov.kh/en/taxtypes.php
http://www.doingbusiness.org/data/exploreeconomies/cambodia/starting-a-business/
https://cambodia.tax.gov.kh/
![Page 27: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/27.jpg)
27 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 3 – LIMITED COMPANIESa. Overview
A limited company is a legal entity that has the capacity, rights, and privileges similar to a natural person. It
enjoys a distinct legal personality from its owners. It can own property and enter into contracts, and is subject
to property taxes, income, sales, and various other taxes. The shareholders of a limited company are not
personally liable for the debts and other obligations of the company, except to the extent of the amount they
have invested or committed to invest.
Limited companies may be organized as private limited companies and public limited companies. A
private limited company may have up to 30 shareholders. If the company has just one shareholder
it is registered as a single member private limited company, but it can amend its registration if new
shareholders are added. A private limited company may not offer its shares or other securities to the
general public, and may only offer them to a private group of shareholders, affiliates, family members,
and its managers. A public limited company can issue debt and equity securities to the general public.
b. Advantages & disadvantages
Advantages:
√√ The owners are liable for the company’s debts and other obligations only to the extent that they have invested or committed to invest in the company.
√√ Private limited companies have the ability to raise funds through both debt and equity securities issued to a private group of shareholders, while public limited companies can raise funds from the public.
√√ Changes in management, the transfer of shares, or the death or dissolution of a shareholder do not normally terminate the company or affect its legal status.
Disadvantages:
√: In comparison to sole proprietorships and partnerships, limited companies are subject to more registration formalities, plus regulations regarding their governance and corporate structure.
√: Because shareholders normally appoint a management team to control the company on their behalf (instead of managing the company themselves), there is greater potential for conflicts between shareholders, or between shareholders and management.
c. Establishment process, documentation and costs
The incorporation process for a public limited company and a private limited company is the same. Before
incorporation, the founding shareholders prepare the company’s articles of incorporation, which are the
governing regulations of the company. It is also possible for the shareholders to enter a shareholders’
agreement (or joint venture agreement) that contains further details of their relationship, which can remain
confidential because the shareholders’ agreement does not need to be registered with the government.
A limited company must be incorporated with the Ministry of Commerce (MOC).It must open separate capital
accounts at a local bank for each class of shares that are issued. It must have minimum capital of KHR 4 million
(approx. USD 1,000). The incorporation can be performed online or physically at the Business Registration
Department of the MOC. The incorporation fee is currently KHR 1.72 million (approx. USD 430). The MOC can
![Page 28: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/28.jpg)
28 ASEAN Social Enterprise Structuring Guide
process the application and issue a registration certificate within a few weeks or less, although delays are fairly
common, and follow up visits to the MOC are often required. The following documents are required:
• Articles of incorporation
• Document proving the address of the business (normally the office rental agreement)
• Certified copies of identity cards or passports of the founding shareholders and directors
• Photos (4x6 inch) of the founding shareholders and directors
• Declarations by the directors that they have not been convicted in a business, civil or criminal case and
are not civil servants.
If a founding shareholder is a legal entity, they will also require a certified copy of the company’s business
registration and a certified copy of the resolution to invest in the limited company and to appoint the corporate
shareholder’s representative.
Within 30 days of receiving the commercial registration certificate, the limited company must deliver the
following documents to the Business Registration Department:
• Two original copies of the articles of incorporation
• If a founding shareholder is a legal entity, the original resolution to invest in the limited company and
to appoint the corporate shareholder’s representative
• An original letter from a local bank proving that the limited company has opened a capital account
After registering with the MOC, the limited company must register its business address with the city or
provincial municipality where the business is located.
The limited company also must register and obtain a tax identification number at the General Department
of Taxation (GDT) within 15 days of receiving its certificate of incorporation from the MOC, for a fee of KHR
400,000 (approx. USD 100).
Lastly, the limited company must register with the Municipal/Provincial Department of Labor and Vocational
Training before commencing business operations.
Private limited companies are not permitted to offer debt or equity securities to the public, but public limited
companies may do so if they obtain approval from the securities market for listing (such as the Cambodia
Securities Exchange), plus approval from the Securities Exchange Commission of Cambodia (SECC). This
requires the company to meet a host of additional requirements and incur additional costs, including larger
minimum capital, public disclosures, and audited financial statements.
d. Liabilities
Shareholders enjoy limited liability for a limited company’s debts and other obligations. They are liable only
to the extent of their investment or the amount they committed to invest in the company, and their personal
savings or other assets are not at risk. A limited company is a separate legal entity, solely responsible for its
own liabilities.
![Page 29: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/29.jpg)
29 ASEAN Social Enterprise Structuring Guide
Directors of a limited company are also generally shielded from the liabilities of the company, except where
obligations result from his/her tortious or criminal acts or omissions in operating the company. One example
where directors can be liable is when they authorize the issuance of shares in violation of Cambodian law.
Shareholders and directors are sometimes requested to guarantee corporate obligations, in which case they
will have personal liability for those obligations .
e. Tax treatment
All limited companies are self-assessed regime taxpayers (SART). There are three levels of SARTs for small,
medium and large taxpayers. The small taxpayer category is only available to sole proprietorships and
partnerships, so a limited company is always considered a medium or large taxpayer. A limited company
currently qualifies as a large taxpayer if:
1. its annual turnover exceeds KHR 2 billion (approx. USD 500,000), or
2. it has registered as a Qualified Investment Project (QIP).
A company needs to pay or collect various taxes, including the following.
Tax on profit
Unlike sole proprietorships and partnerships which are eligible for progressive tax levels between 0-20
percent, most limited companies are subject to a 20 percent flat tax on profits.
Gifts and donations are generally non-deductible expenses. Charitable contributions are generally deductible
if (1) they are made to registered organizations, which serve religious, charitable, scientific, literary, or
educational purpose with no part of the assets or earnings used for private interest, and (2) to the extent that
they do not exceed 5 percent of the enterprise’s taxable profit.
A limited company that is approved by the Council for the Development of Cambodia as a QIP may receive
various benefits and tax holidays. Most QIPs are larger projects with minimum invested capital varying
from USD 100,000 to USD 8 million, depending on the field of investment. QIPs may be eligible for various
exemptions from customs duties, accelerated depreciation, tax holidays, and preferred treatment with respect
to hiring foreigners.
A listed public limited company may also receive various tax incentives. Currently, public limited companies
listed between 2015 and 2018 pay only 50 percent of the normal tax on profits for the initial three years of
their listing.
Unlike in many other countries, corporate profits that have already been taxed are not subjected to income
tax when they are distributed to shareholders as dividends. However, dividends distributed to non-resident
shareholders are subject to a 14 percent withholding tax.
Patent tax
The annual patent tax, payable for each business activity and each location, currently equals:
• Medium taxpayer: KHR 1,200,000 (approx. USD 300).
• Large taxpayer: KHR 3 million (approx. USD 750) or KHR 5 million (approx. USD 1250), depending on
revenue and other criteria of the GDT.
![Page 30: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/30.jpg)
30 ASEAN Social Enterprise Structuring Guide
Value-added tax (VAT)
VAT is imposed at a rate of 10 percent on supply of most goods and services. VAT is not applicable to exported
goods and services consumed abroad.
Minimum tax
Minimum tax is an annual tax imposed at the rate of 1 percent on the company’s annual turnover inclusive of
all taxes, except for VAT. Minimum tax is payable instead of tax on profit if it is higher than the tax on profit.
Withholding taxes
Companies are required to withhold and transmit to the GDT taxes at rates of 4-15 percent on many payments
such as rentals, dividends paid to non-resident shareholders, various services performed by an individual
person, interests, royalties for intangible properties, and interest in minerals.
Gifts and grants
Gifts and grants received by a limited company normally must be included in the taxable income of the period
in which they are received. In case of debt financing, interest payments made by the company are deductible
as long as they do not exceed the company’s total interest income plus 50 percent of the net non-interest
income.
f. Ongoing governance and regulatory obligations
Subject to applicable licensing requirements, a social enterprise established as a limited company may
engage in any permitted business activities alongside its charitable activity. Cambodian law requires a limited
company to hold regular meetings of the board of directors at least once every three months. The chairman or
one-third of the directors may call a board meeting at any time.
In addition, shareholders must hold their meetings at least once per year, with at least 20 days advance notice
of each meeting. The board of directors or shareholders that together hold at least 51 percent of the voting
shares of the company may call for a shareholders meeting any time.
Any change of corporate information such as the company name, address, business objectives, directors,
or shareholders must be filed with the GDT and the MOC. Limited companies have to issue invoices for
all transactions, fulfill all monthly and annual tax filing requirements, and keep accounting records and
supporting documents for at least 10 years.
If a public limited company makes public offerings, it faces additional requirements, such as filing disclosure
documents with the SECC, prohibitions on insider trading, public disclosures, more frequent board meetings,
additional minority shareholder rights, and requirements to conduct internal and external audits.
g. Corporate structure
The shareholders of a limited company control the company indirectly through their elected board of directors,
which manages the affairs of the company through their appointed management team. The board of directors
usually dominates high-level decisions in the company, while the company’s management team is responsible
for day-to-day operations. A shareholder may be a director and an officer of a limited company at the same time.
A private limited company must have at least one director, and a public limited company must have at least
three directors. A listed public company is subject to additional structural requirements. For example, it must
![Page 31: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/31.jpg)
31 ASEAN Social Enterprise Structuring Guide
have at least five directors and an audit committee. These structural requirements can be burdensome for
small social enterprises.
h. Governance
A shareholder in a limited company can be an individual or a legal entity, and can be of any nationality. A
limited company is considered to be Cambodian if at least 51 percent of the voting shares of the company are
held by natural or legal persons of Cambodian nationality. Limited companies that have foreign nationality
may not hold title to real estate except for condominiums.
i. Finance and fundraising
Limited companies usually have better access to capital than other forms of businesses. A private limited
company can offer debt and equity securities to a private group of investors. A public limited company can
offer them to the public. Public offerings are costly and incur more extensive regulatory requirements for the
company. In practice, the ability to issue negotiable debt instruments or make public offerings is still very
limited in Cambodia.
j. Resources
https://www.businessregistration.moc.gov.kh/application-for-registration/
http://www.tax.gov.kh/en/taxtypes.php
http://www.doingbusiness.org/data/exploreeconomies/cambodia/starting-a-business/
https://cambodia.tax.gov.kh/
![Page 32: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/32.jpg)
32 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 4 – REPRESENTATIVE OFFICES AND BRANCH OFFICES OF FOREIGN COMPANIESa. Overview
A company incorporated by the law of a country other than Cambodia (i.e., a foreign company) may establish
a Cambodian subsidiary in the form of a partnership or a limited company as discussed earlier. A foreign
company may also directly conduct some business activities in Cambodia, without establishing a separate
legal entity, by establishing a representative office or a branch office.
Representative offices are traditionally considered exploratory offices that are established by a foreign
company that wants to learn more about a new market before investing in a full-scale subsidiary. By law, a
representative office may carry out various market research and promotional activities for its parent, but it
is not permitted to earn revenue by selling goods or services, or engaging in manufacturing, processing, or
construction activities. Thus, a representative office is normally not a suitable option for a social enterprise
that wants to generate revenue in Cambodia.
A branch office is an office established by a foreign company to conduct commercial, revenue-generating activities
in Cambodia. From an operational standpoint, a branch office is similar to a subsidiary, but since a branch office
has no distinct legal personality, its parent company remains fully liable for the branch’s obligations.
b. Advantages and disadvantages
Advantages:
√√ A representative office faces minimal regulatory requirements due to its limited scope of operation. It is employed by foreign companies that do not offer goods and services directly to customers in Cambodia. It does not pay taxes on profits because it is not permitted to generate revenue.
√√ A branch office may conduct revenue-generating activities like a partnership or limited company without facing some of the regulatory requirements imposed on those two types of legal structures.
Disadvantages:
√: A representative office cannot perform revenue-generating activities Cambodia.
√: The parent company of a branch office has unlimited liability for unfulfilled liabilities of its branch office.
c. Establishment process, documentation and costs
Representative offices and branch offices must register with the Ministry of Commerce (MOC). The registration
can be performed online or physically at the Business Registration Department of the MOC. The MOC’s
registration fee is currently KHR 1.72 million (approx. USD 430). The required documents include:
• a certified copy of the original business registration certificate of the parent company;
• a document proving the address of the business (normally an office rental agreement);
• company resolutions to establish the branch or representative office and to appoint the manager of
the branch or representative office;
• a certified copy of the identity card or passport of the manager of the representative office or
branch office;
![Page 33: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/33.jpg)
33 ASEAN Social Enterprise Structuring Guide
• a photo (4x6 inch) of the manager; and
• a declaration by the manager of the representative office or branch that he/she has not been convicted
in a business, civil or criminal case and is not a civil servant.
After registering with the MOC, the representative office or branch office must register its business address
with the city or provincial municipality where the business is located.
They also must register and obtain a tax identification number at the General Department of Taxation (GDT)
within 15 days after receiving their registration certificate from the MOC. The registration fee at the GDT
currently equals KHR 400,000 (approx. USD 100).
Lastly, they must register at the Municipal/Provincial Department of Labor and Vocational Training before
commencing business operations.
Many business activities also require special licenses or permits that are issued by a range of ministries and
local authorities.
d. Liabilities
Representative offices and branch offices are agents of their foreign parents with no separate legal personality.
The parent company can thus be held liable for their unfulfilled obligations.
e. Tax treatment
Representative offices and branch offices are considered self-assessed regime taxpayers (SART). There are
three levels of SARTs (small, medium, and large), but a representative office is considered a medium taxpayer,
and a branch office a large taxpayer, by default.
Because a representative office is prohibited from engaging in any revenue-generating activity, it does not
need to pay tax on profit or the minimum tax, and it does not need to collect VAT from customers. However, it
remains subject to other tax requirements, such as tax on salaries paid to employees, and withholding taxes
on certain services, rentals, interest and royalties. The patent tax for a representative office, payable annually
for each line of business activity and each location, currently equals KHR 1.2 million (approx. USD 120).
Similar to limited companies, the branch offices of a foreign company needs to pay or collect various taxes,
including the following:
Tax on profit
Branch offices are normally subject to a 20 percent flat tax on profits. If the branch office remits profits back
to its parent company, the remittance is subject to a 14 percent withholding tax.
Gifts and donations are generally non-deductible expenses. Charitable contributions are generally deductible
if (1) they are made to registered organizations, which serve religious, charitable, scientific, literary, or
educational purpose with no part of the assets or earnings used for private interest, and (2) to the extent that
they do not exceed 5 percent of the enterprise’s taxable profit.
Patent tax
The patent tax for a branch office, payable annually for each line of business activity and for each location,
currently equals KHR 3 million (approx. USD 750) or KHR 5 million (approx. USD 1,250), depending on revenue
and other criteria set by the GDT.
![Page 34: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/34.jpg)
34 ASEAN Social Enterprise Structuring Guide
Value-added tax (VAT)
VAT is imposed at a rate of 10 percent on supply of most goods and services. VAT is not applicable to exported
goods and service consumed abroad.
Minimum tax
Minimum tax is an annual tax imposed at the rate of 1 percent on the branch office’s annual turnover inclusive
of all taxes, except for VAT. Minimum tax is payable instead of tax on profit if it is higher than the tax on profit.
Withholding taxes
Branch offices are required to withhold and transmit to the GDT taxes at rates of 4-15 percent on many
payments, such as rentals, profits remitted to foreign parent company, various services performed by an
individual person, interests, royalties for intangible properties, and interest in minerals.
f. Ongoing governance and regulatory obligations
Subject to applicable licensing requirements, a social enterprise established as a branch office may engage
in any permitted business activities alongside its charitable activity. A representative office, however, may
only perform various market research and promotional activities for its parent, and therefore is not a likely
candidate for social enterprises.
Any changes of corporate information such as the name, ownership, objective, legal form, and address of the
business must be filed with the GDT and the MOC.Limited companies have to issue invoices for all transactions,
fulfill all its monthly and annual tax filing, and keep accounting records and supporting documents for at least
10 years.
g. Corporate structure
The corporate structure of representative offices and branch offices are determined by their parent company.
However, the law of Cambodia requires that they are managed by at least one manager.
h. Governance
Representative offices and branch offices are considered foreign legal persons.
i. Finance and fundraising
Representative offices may only obtain funding from their parent company as they are not allowed to engage
in profit-generating activities.
Branch offices may obtain funding from their parent companies and from sales. Any gifts and grants received
by a branch office must be included in its taxable income for the period in which the gift or grant was received.
j. Resources
https://www.businessregistration.moc.gov.kh/application-for-registration/
http://www.tax.gov.kh/en/taxtypes.php
http://www.doingbusiness.org/data/exploreeconomies/cambodia/starting-a-business/
https://cambodia.tax.gov.kh/
![Page 35: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/35.jpg)
35 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 5 – DOMESTIC ASSOCIATIONS, FOREIGN ASSOCIATIONS, AND DOMESTIC AND FOREIGN NGOS
NGOs
a. Overview
Cambodia has one of the highest numbers of NGOs per capita in the world at approximately one NGO per 3000
people (as of November 2016), a statistic that does not take into account the number of unregistered NGOs.
Cambodia did not have specific laws to govern the establishment of NGOs until 2015. Before that time
NGOs were encouraged to register, but many NGOs chose to remain unregistered since there were no legal
sanctions against unregistered organizations. In 2015, Cambodia passed the Law on Associations and Non-
Governmental Organizations (LANGO) to govern and restrict the activities of NGOs. Under the LANGO, NGOs
may take one of the following four organizational forms:
• A domestic association is defined as a membership organization established under Cambodian law
by natural persons or legal entities, with the aim of representing and protecting the interests of the
association’s members and without generating or sharing profits.
• A foreign association is an entity established in another country with the aim of conducting activities
to serve the public interest without generating profits.
• A domestic NGO is defined as a non-membership organization, including foundations, established
under Cambodian law by natural persons or legal entities, with the aim of providing funds or services
in one or several sectors for the public interest and without generating or sharing profits.
• A foreign NGO is an entity established in another country with the aim of conducting activities to serve
the public interest without generating profits.
The fundamental difference between an association and an NGO is that the former is organized to serve its
members while the latter serves the general public interest. Going forward in this section of the Guide, we will
refer to associations and NGOs simply as “NGOs,” unless stated otherwise.
NGOs cannot share dividends among their founding members, and all of their revenues from donors or
income-generating activities must be retained or invested in their social activities.
NGO’s are entitled to certain tax exemptions, subject to permission granted by the government, especially the
Ministry of Economy and Finance (MEF).
Domestic NGOs must register with the Ministry of Interior (MOI). Foreign NGOs must register with the Ministry
of Foreign Affairs and International Cooperation (MFAIC) by establishing a memorandum of understanding
(MOU) with the MFAIC.
The LANGO also requires these organizations to report their activities and finances annually to the government.
Failure to comply with certain provisions of the LANGO may result in fines or deregistration, and deregistered
NGOs are banned from conducting any activities in Cambodia.
The law is unclear and untested, but unless properly structured it is possible that NGOs based abroad can
be held liable for the obligations of their offices registered in Cambodia, including contract obligations, tort
liabilities, and taxes.
![Page 36: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/36.jpg)
36 ASEAN Social Enterprise Structuring Guide
b. Advantages & disadvantages of an NGO
Advantages:
√√ NGOs may be eligible for tax exemptions.
√√ NGOs are required to report activities and finances annually, thereby contributing to increased accountability and transparency.
√√ All resources and assets, whether from donors or income-generating activities, must be retained within the organization or reinvested in social activities, and cannot be transferred as dividends.
Disadvantages:
√: Dividends and other fruits of success may not be shared with founders or board members.
√: Registration can be challenging.
√: Both the NGO and its management face onerous reporting requirements, and the obligation to report assets and liabilities.
√: Under certain conditions, there is the possibility of suspension by local authorities.
c. Establishment process, documentation & costs
Domestic NGOs
Establishment process: A domestic NGO that wishes to conduct any activities in Cambodia must be registered
with the MOI. By law, the MOI is required to examine the registration application and issue a decision on
registration within 45 working days after receiving the application. The LANGO provides that the MOI may
reject an application to register a domestic NGO if the NGO’s purpose and goals would endanger the security,
stability, and public order, or jeopardize national security, national unity, culture, traditions, and customs of
Cambodian national society.
When reviewing an application, if the MOI concludes that the applicant has not met all criteria for registration,
the MOI must inform the applicant of the deficiencies in writing within 45 working days. After receiving
additional information and materials from the applicant, the MOI is supposed to issue a decision on the
application within 15 more working days. The law is unclear on whether this process and time frame will repeat
itself if the applicant’s second submission remains deficient.
If the MOI ultimately decides to reject an applicant’s registration, the applicant has the right to appeal that
decision to the courts. If the MOI fails to comply with the above timeframe, the domestic NGO is deemed
registered, and the MOI must prepare documents legalizing the registration. However, the law does not
specify a deadline for the MOI to do this, and it is unclear whether domestic NGOs can operate legally while
waiting for the MOI to do so.
Reporting obligations: Once successfully registered, domestic NGOs become legal entities, meaning that
they have certain rights and obligations provided by law, including the right to enter into contracts under
their own names, to sue or be sued in the courts, and to be liable for both civil and criminal punishments.
Domestic NGOs must inform the MOI and the Ministry of Economy and Finance (MEF) in writing about all of
their Cambodian bank accounts within 30 days from the date of registration. They also must inform the MOI
any time they amend their statute, move their office, replace their president or executive director, or change
![Page 37: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/37.jpg)
37 ASEAN Social Enterprise Structuring Guide
their bank account information. Those notices must be submitted to the MOI in writing within 15 days of the
change, and must include copies of the amended documents.
Please see Section (d) below on liability for a discussion of the consequences when a domestic NGO fails to
comply with these reporting obligations.
Documentation: Applications to establish a domestic NGO must be submitted to the MOI, and must include
the following documents:
• Completed application form
• Letter issued by the commune or sangkat chief stating the address of the central office of the NGO
• CVs of each founding member, along with recent photographs
• The statute of the NGO, signed by its president
The statute of a domestic NGO must include the following:
• The organization’s purposes and goals
• The organization’s name (written in full and abbreviated), which may not be confusingly similar to the
name or abbreviation of any registered domestic NGO (a name search should be conducted with the
local authorities)
• The organization’s logo, which may not be confusingly similar to the logo of any national or state
institution, any registered domestic NGO, or the Red Cross or Red Crescent or international institutions
• Rules for selecting, transferring, and removing the president and executive director
• Rules for changing the organization’s name and logo, and for amending its statute
• Sources of funding and assets
• Rules for managing assets
• Rules for dissolving and disposing of properties upon dissolution of the organization
Costs: The current official government fee for registering a domestic NGO is KHR 300,000 (approx. USD 75).
If a domestic NGO wishes to open a branch, change its organizational structure, or amend its statute, the MOI
charges an official fee of KHR 200,000 (approx. USD 50).
Foreign NGOs
Establishment process: Any NGO which is established and registered abroad that wishes to conduct activities
in Cambodia must register as a foreign NGO with the Ministry of Foreign Affairs and International Cooperation
(MFAIC) by signing an MOU with the MFAIC. Before submitting an application to do so, the foreign NGO must
reach an arrangement with the ministries relevant to that NGO’s social objectives, to serve as its project
partners. For example, if an NGO’s main purpose is to help impoverished women, the NGO must obtain a
letter of support from the Ministry of Women’s Affairs, before applying for an MOU with the MFAIC. The NGO
might also need to enter an MOU with that ministry after obtaining registration with the MFAIC.
Short-term projects: If a foreign NGO wishes to conduct a short-term project, it does not need to register with
the MFIAC. Instead it can implement the project through a local partner already registered in Cambodia, or by
obtaining special approval from the MFAIC.
![Page 38: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/38.jpg)
38 ASEAN Social Enterprise Structuring Guide
The MFAIC has 45 working days to examine the contents of an application and decide whether or not to sign
an MOU with a foreign NGO. However, unlike in a domestic NGO application, the LANGO does not state what
happens if the MFAIC fails to meet the 45-day deadline. Moreover, the LANGO does not require the MFAIC
to provide its reasons for refusing to register a foreign NGO, or any right to appeal the MFAIC’s decision with
the courts.
An MOU with the MFAIC has a maximum term of three years, and it terminates on its expiration date without
any formalities, unless the foreign NGO submits a request to extend the MOU at least 90 days prior to the
expiration date. The maximum extension period is three years.
Reporting obligations: Within 30 days of successful registration, foreign NGOs must inform the MFAIC and
the MEF in writing about all of their Cambodian bank accounts. They must also inform the MFAIC any time
they move their representative office, replace their country representative, or make any changes to their bank
account. Notices must be submitted to the MFAIC and the MEF in writing within 15 days of the change, and
must include copies of the amended documents.
Please see Section (d) below on liability for a discussion of the consequences when a foreign NGO fails to
comply with its reporting obligations.
Documentation: Applications to register a foreign NGO must be submitted to the MFAIC, and must include
the following:
• A written request letter from the president of the foreign NGO to appoint its representative (along with
the representative’s CV), and to open a representative office in Cambodia
• A letter from the commune or sangkat chief stating the address of the applicant’s representative office
in Cambodia
• A foreign registration document authorizing the foreign NGO to operate
• A letter of support for the foreign NGO’s Cambodian projects, issued by the NGO’s project partners
(public authorities) in Cambodia
• A letter from the applicant’s foreign headquarters, certifying the budget for implementing the
applicant’s projects for at least its first six months
• The applicant’s letter to the MFAIC and the MEF promising to provide all local bank account information.
Some of these documentary requirements can be problematic for a foreign NGO because it must recruit a
representative and rent an office in Cambodia without knowing for certain whether its registration will be
approved.
Costs: The MFAIC’s current official fee to register a foreign NGO is KHR 1.2 million (approx. USD 300), and to
extend that registration is KHR 800,000 (approx. USD 200).
Foreign NGOs can request an approval letter from the MFAIC to apply for a car license plate for KHR 1 million
(approx. USD 250), and a motor license plate for KHR 600,000 (approx. USD 150). Foreign NGOs wishing to
amend their names and stamp must pay the MFAIC an official fee of KHR 600,000 (approx. USD 150). By law,
it does not take longer than 15 days to process the requests above, although delays are common.
![Page 39: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/39.jpg)
39 ASEAN Social Enterprise Structuring Guide
d. Liabilities
Domestic NGOs
The LANGO provides that domestic NGOs become legal entities upon registration with the MOI, and thus may
sue and be sued. Founders and management of a domestic NGO are therefore assumed not to be liable for the
NGO’s obligations unless they have committed fraud, self-dealing or similar offenses. It is also recommended
that the statute of a domestic NGO contain provisions expressly limiting the liability of its founders and its
management.
Foreign NGOs
The LANGO does not expressly state that foreign NGOs are legal entities, and it does not expressly grant
limited liability to a foreign NGO’s parent entity for the debts of the foreign NGO registered in Cambodia.
Moreover, the LANGO always refers to the office of a foreign NGO as a representative office. To our knowledge
this issue has not been resolved by the Cambodian courts, and there is at least some chance that a parent
NGO can be ruled to be liable for the debts of its Cambodian counterpart, the same way that foreign for-profit
companies can be liable for the debts of their Cambodian representative offices and branches under the Law
on Commercial Enterprises.
Directors
Under articles 17 and 18 of the Law on Anti-Corruption, leaders of civil society, including the leaders of
domestic and foreign NGOs, must declare their assets and liabilities to the Anti-Corruption Unit, in writing or
electronically, upon taking and leaving office, as well as periodically every two years, regardless of whether the
assets and liabilities are inside or outside Cambodia.
Leaders of civil society who fail to declare their assets and liabilities in accordance with the Law on Anti-
Corruption may be sentenced to imprisonment of one month to one year and fined from KHR 100,000 (approx.
USD 25) to KHR 2 million (approx. USD 500), and be forced to declare their assets to the Anti-Corruption
Unit. If the order to declare assets is resisted, other sanctions may be doubled. However, before applying any
punishment, the Chairman of the Anti-Corruption Unit must instruct the leaders of the domestic and foreign
NGOs in writing to declare their assets and liabilities.
Penalties
Domestic NGOs: Domestic NGOs failing to comply with reporting obligations discussed above in Section
(c) and the regulatory obligations in Section (f) will first be notified in writing by the MOI to comply within 30
working days. If they fail to comply within that period, the MOI may suspend their activities for up to 90 days.
For repeated non-compliance, the MOI may remove the domestic NGOs from its register.
A domestic NGO that fails to comply with its statute may be notified by the MOI in writing to remedy the
situation within 30 days. While pending remedial action, the domestic NGO might also be suspended. If the
domestic NGO fails to comply with the MOI’s notice, the MOI may remove the domestic NGO from its register.
The MOI may also deregister domestic NGOs whose activities endanger the security, stability, and public
order, or jeopardize the national security, culture, traditions, and customs of Cambodian national society.
These grounds for deregistration are broad and ambiguous.
![Page 40: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/40.jpg)
40 ASEAN Social Enterprise Structuring Guide
If the MOI decides to suspend or deregister a domestic NGO, or impose a fine, the domestic NGO is entitled to
file an appeal with the courts within 30 working days from the date of receiving the MOI notification.
Unregistered, deregistered, or suspended domestic NGOs that continue conducting activities in Cambodia face
various sanctions, including possible fines of KHR 5 million (approx. USD 1,250) to KHR 10 million (approx. USD
2,500). As a last resort, authorities may file complaints to the court against the unregistered, deregistered,
or suspended domestic NGOs, without prejudice to other criminal actions. The law is not entirely clear, but it
is possible that these sanctions also apply to members of management of an unregistered, deregistered, or
suspended domestic NGO, in part because that NGO will no longer be recognized as a legal entity.
Any domestic NGO that commits a crime (e.g., money laundering, terrorist financing or terrorist crimes, etc.)
is subject to prosecution and punishment in accordance with Cambodia’s criminal law.
Foreign NGOs: A foreign NGO that fails to comply with the reporting obligations in Section (c) above, or
the regulatory obligations in Section (f), will be notified in writing by the MFAIC to comply within 30 days. If
the foreign NGO fails to comply within that period, the MFAIC may issue another written warning giving the
foreign NGO another 30 days to comply. Failure to do so may result in MOU termination and deregistration of
the foreign NGO.
The MFAIC may also terminate an MOU with any foreign NGO that breaches it terms. In addition, the LANGO
authorizes the MFAIC to terminate a foreign NGO’s MOU if it conducts any activities that harm security, stability,
and public order, or endanger the national security, national unity, culture, good traditions and customs of
Cambodian national society. These grounds for termination are broad and ambiguous.
Unregistered or deregistered foreign NGOs that conduct activities in Cambodia will be ordered to stop their
activities by the authorities, and their foreign employees may be deported and/or subject to other sanctions.
Additionally, any foreign NGO that commits a crime (e.g., money laundering, terrorist financing or terrorist
crimes, etc.) is subject to punishment in accordance with Cambodia’s criminal law.
e. Tax treatment
NGOs are taxable entities and are subject to Cambodia’s tax regime. However, they are eligible for tax
incentives and tax exemptions under Cambodian law. They must register with the Tax Administration, either
online or in person, within 15 days after registration with the MOI or the MFIAC. After registration the NGO will
receive a tax certificate with a tax ID number (TIN) that can be used with any tax related documents.
Income tax
According to Article 9 of the Law on Taxation, the income of an entity is tax exempt if the entity is “organized
and operated exclusively for religious, charitable, scientific, literary or education purposes, and no part of the
assets or earnings of which is used for any private interests,” or the entity is “any labor organization or any
chamber of commerce, industry, or agriculture, in the case where the income of these organizations is not used
for the private benefit of any shareholder or physical person.”
This income tax exemption does not apply to any profits of property or business income that are not substantially
related to the purpose or function which constitutes the basis for tax exemption of a non-profit organization.
![Page 41: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/41.jpg)
41 ASEAN Social Enterprise Structuring Guide
An organization that meets the requirements above may apply to the MEF for tax exemption by providing the
following documentation:
• Goals and objectives of the organization
• Names and addresses of resident persons (if any) who sit on the board of directors of the organization
• Name and address of the director(s) responsible for the operation of the organization in Cambodia (for
organizations connected to an organization outside of Cambodia)
• Sources and uses of all funds for the operation of the organization in Cambodia
• Assets held in Cambodia by the organization or the parent organization
• Local bank account information of the organization
Changes to the information above must be reported to the MEF within 15 days of the change.
The MEF is authorized to grant exemption on a case-by-case basis, and has sole discretion in the matter. If
tax exempt status is approved by the MEF, it will remain in force as long as the NGO continues to meet the
conditions in its application letter and the MEF approval.
Value-added tax (VAT)
According to article 57 of the Law on Taxation, the sale of goods and services by “non-profit activities in the
public interest that have been recognized by the [MEF]” are not subject to VAT. In order to qualify for this
exemption, a foreign NGO must receive permission from the MEF. NGOs that have not received permission
still need to collect VAT from their customers and turn it over to the General Department of Taxation, just like
any other type of company.
In addition, foreign NGOs may request permission from the MEF to receive refunds on the VAT paid when
purchasing supplies. It is normally best to include this specific provision in the MOU that is negotiated and
signed with the MFAIC.
Tax and excise exemption for importing materials, machinery, vehicles and fossil fuels
NGOs wishing to import materials, machinery, vehicles, and fossil fuels to implement their projects and
operations may be exempt from paying import tax by submitting the following documents in advance to the
Council for the Development of Cambodia (CDC):
• Official letter from the relevant ministries permitting the NGO to operate in Cambodia; and
• The NGO’s agreement on project implementation and/or MOU with the relevant ministries.
In addition to the documents above, the NGO must submit the following documents to the CDC for each
specific import:
• Request letter from the head or authorized representative of the project implementing agency
• Project document and/or other documents pertaining to the project for which the respective materials,
machinery, vehicles, and fossil fuels are required
• Work plan and annual budget showing sources of funds for project implementation, or a master list of
required machinery, materials, vehicles, and fossil fuels to be imported with tax and excise borne by
the Royal Government of Cambodia
![Page 42: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/42.jpg)
42 ASEAN Social Enterprise Structuring Guide
• Annual progress report on project implementation from the most recent year
• List of vehicles and machinery already permitted for import and their current status/condition
• Import-related documents including the invoice, packing list, and bill of lading. For occasional
humanitarian aid, a certificate of donation is also required.
Currently the CDC’s official fee to process an application for an import tax exemption is KHR 1.6 million
(approx. USD 400), and the approval is valid for 12 months.
When importing vehicles, NGOs must request a waiver of import taxes from the CDC before making the
purchase, attaching a pro-forma invoice detailing the vehicle specifications. Generally, luxurious sedans or
vehicles valued at more than USD 30,000 are not allowed, but an exemption can be requested by providing
appropriate reasons to the MEF.
Materials, machinery, vehicles, and fossil fuels that are imported under a tax exemption generally may not
be sold, or transferred for use at other places or by other agencies, and may not be disposed of without
permission by the Customs Department.
f. Ongoing governance and regulatory obligations
All registered NGOs are entitled to enter into contracts with third parties to implement their activities, and to
recruit staff or workers. The Ministry of Economy and Finance or the National Audit Authority may check and
audit the financials of any NGOs.
Domestic NGOs
By law, domestic NGOs (except domestic associations) are required to “maintain their neutrality towards
political parties in Cambodia.” Domestic NGOs (except domestic associations) also need to submit project
activity reports and annual financial reports to the MOI and the MEF by the end of February of each year.
When receiving funds from donors, if a domestic NGO distributes project activity reports and/or annual
financial reports to the donors, and/or has any project document and/or financial agreement with the donors,
the domestic NGO must submit copies of those documents to the MOI and the MEF within the regulatory
deadline. These reports must also be maintained in the office of the domestic NGO for at least five years.
See Section (d) above for a discussion of the consequences of failing to comply.
If a domestic NGO wishes to suspend its activities, it must notify the MOI in writing, as well as submit project
activity reports and financial reports to the MOI and the MEF. If the domestic NGO wishes to dissolve its entity,
it must clear its third party obligations before disposing of its resources or assets. If the domestic NGO is
dissolved by the courts or by MOI deregistration, the clearance of third party obligations and the disposal of
resources and assets must comply with the decisions of the authorities.
Foreign NGOs
If a foreign NGO sends any project activity reports and/or annual financial reports to its donors, and/or has
any financial agreement or project documents with its donors, copies must be sent to the MFAIC and the MEF
within the regulatory deadline.
In the past, some foreign NGOs misunderstood that their organization and foreign employees in Cambodia
were automatically eligible for certain immunities and privileges under the 1961 Vienna Convention on
![Page 43: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/43.jpg)
43 ASEAN Social Enterprise Structuring Guide
Diplomatic Protection, such as immunity from civil, administration, and criminal jurisdiction, immunity from
obligation to be a witness, immunity from search or attachment of property, etc. However, the LANGO
clarifies that foreign NGOs, their foreign and Cambodian staff, and the family members of their staff do not
enjoy those immunities and privileges, unless there is a special agreement between the foreign NGO and
the Cambodian government. Moreover, foreign NGOs have an obligation to be neutral towards any political
parties in Cambodia.
Please see Section (d) above on liabilities for a discussion of the consequences when a foreign NGO fails to
comply with these neutrality and reporting obligations.
If a foreign NGO wishes to suspend its activities, it must notify the MFAIC in writing in advance, and it must
submit project activity reports and financial reports to the MFAIC and the MEF. If the foreign NGO wishes to
terminate its MOU with the MFAIC, it must clear its third party obligations before disposing of its resources
or assets, in compliance with the funding agreements with its donors. According to the LANGO, if the MOU
is terminated by the MFAIC, the disposal of the foreign NGO’s assets must comply with the decisions of the
headquarters of that foreign NGO.
g. Corporate structure
Under the LANGO, there are four structures available for NGOs:
• A domestic association is defined as “a membership organization established under the laws of
Cambodia by natural persons or legal entities aiming at representing and protecting the interests of
their members without generating or sharing profits.”
• A foreign association is an entity established in another country with the aim of conducting activities
to serve the public interest without generating profits.
• A domestic NGO is defined as “a non-membership organization, including foundations, established
under the laws of Cambodia by natural persons and/or legal entities aiming at providing funds and
services in one or several sectors for the public interest without generating or sharing profits.”
• A foreign association or foreign NGO refers to a legal organization established outside the country
aiming at conducting activities to serve the public interest without generating profits in Cambodia.
h. Governance
Domestic NGOs
To establish a domestic association, there must be at least three founding members who are at least 18 years
old. They do not have to be Cambodian citizens.
Domestic NGOs (except associations) must be founded by at least three founding members who are at least
18 years old and must be natural persons of Cambodian nationality.
The LANGO provides that the MOI can stipulate conditions, formalities and procedures for establishing and
registering a domestic NGO by a foreign legal entity or a foreign person, and for establishing and registering
a domestic association by minors, but it has not yet done so.
Foreign NGOs
There are no regulations addressing the composition of the management or restricting foreigners from serving
as managers of foreign NGOs.
![Page 44: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/44.jpg)
44 ASEAN Social Enterprise Structuring Guide
The nationality of representatives of foreign NGOs is not restricted. For example, the Chab Dai organization,
registered in Cambodia as a foreign NGO, has non-Cambodian nationals serving on both the board of
directors in the USA and the representative committee in Cambodia. However, the Cambodian government
generally encourages NGOs to minimize expatriate staff so as to maximize the transfer of skills and expertise
to Cambodian staff.
i. Finance & fundraising
Domestic NGOs
By law, the resources and assets of a domestic association may consist of:
• the domestic association’s own resources and assets;
• donations or subscription fees of members and other third parties (natural or legal persons); and
• other income generated from lawful sources.
The resources and assets of a domestic NGO (except domestic associations) may consist of:
• the organization’s own resources and assets;
• donations from natural persons or legal entities; and
• other income generated from lawful sources.
The LANGO does not prohibit domestic NGOs from conducting income-generating activities such as selling
products or services, as long as these activities are lawful. As a practical matter, there are many NGOs in
Cambodia that sell products and services, especially in a start-up phase to achieve their charitable goal, such
as The World Toilet Association’s SaniShop model, which engages and empowers rural households by seeding
low-cost sanitation-ware businesses in Kampong Chhnang.
Foreign NGOs
By law, the resources and assets of a foreign NGO must be obtained from lawful sources. The law does
not clarify this provision, and it is assumed that foreign NGOs can conduct any lawful activities to generate
income, and receive funds from any sources
It is possible for the MOUs between foreign NGOs and the MFAIC to prohibit certain fundraising activities. For
example, Article 13 of the MOU between the Royal Government of Cambodia and Paz Y Desarrollo, a Spanish
NGO in Cambodia, prohibits the NGO from engaging in any profit-making activities.
j. Case Study: Cambodian Children’s Funds
Cambodian Children’s Funds (CCF), founded in 2004 by Scott Neeson, aims to transform kids in the most
impoverished communities of Cambodia into tomorrow’s leaders. Tothis end, CCF has been providing
free education, healthcare services, and family support to poor children in Cambodia’s most improvised
communities, centered around the former slums at Steung Meanchey. CCF also has other charitable programs,
such as leadership, community outreach, childcare and vocational training for chidlren and their families.
CFF is registered in Cambodia as a foreign NGO, and has been granted a tax exemption on its profits by the
Tax Administration.
![Page 45: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/45.jpg)
ATHIT PERAWONGMETHA
45
indonesia
![Page 46: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/46.jpg)
46 ASEAN Social Enterprise Structuring Guide
INTRODUCTIONDuring the past decade, the term “social enterprise” has gained a growing popularity in public
in Indonesia. This is evidenced by numerous events and programmes conducted by different
organizations and institutions to promote social enterprises through different channels of publicity.
These activities have contributed to the growing awareness among public audience about social
enterprises.
Many institutions, corporates, universities and media utilize social enterprise to describe a distinctive
model of doing business that is inherently different from conventional businesses. However, it does
not mean that the public generally agree and understand what social enterprise means.
A Need for a Legal Guide for Social Enterprises
Categorically speaking, social enterprises are businesses. However, they have attributes that are
distinctively different from conventional businesses, as described in this guide. Below are a few
reasons why there is a need for a legal guide specifically written for social enterprises in Indonesia.
The purpose of a social enterprise is to solve a particular social or environmental issue by using
business or market mechanisms to do so. There is no single legal status available in Indonesia that
can provide a perfect model for a social enterprise. In Indonesia, legal entities must declare whether
their purposes are social or commercial in nature. Social enterprises need to know the options that
are available to them, along with their consequences, and only then can they decide whether they
should use for-profit or non-profit structure.
Social enterprises may need funding from donation or grants, or from investment (i.e. debt or equity).
There are no available legal entities in Indonesia that allow for donation, income from commercial
activities, and equity or debt investments to be received by a single legal entity.
While allowing for private ownership, social enterprises tend to prefer open and joint decision
making, combined with efficient and swift execution on daily operations. It may be difficult for
common legal entities to accommodate this kind of combination. For example, cooperatives are
designed to allow open and transparent decision making and governance, but they do not allow
for private ownership. Meanwhile, limited liability companies allow for private ownership, but they
are not designed for joint decision making. Lastly, foundations are designed without allowing for
individual ownerships and use a top-down approach in its governance.
Legal framework for social enterprises
The legal system in Indonesia does not currently recognize a SE as a legal entity. Nonetheless,
there is room for an entity to conduct activities in the spirit of SE. This can be done by establishing
a business entity, whether in the form of a legal entity or a non-legal entity.
indonesia
![Page 47: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/47.jpg)
47 ASEAN Social Enterprise Structuring Guide
Generally, before deciding the form of entity that will be used as the vehicle for a SE, entrepreneurs must first
identify the business sector that the SE will be engaged in. There are certain types of business activities in
Indonesia that are restricted only to specific business entities. Therefore, identifying the proposed business
sector will assist the entrepreneurs in choosing the most suitable type of entity to pursue activities as an SE.
Further, the entrepreneurs need to consider the scope of the liabilities that they want to assume out of
the business activities, i.e., whether they only want to assume limited liability based on their respective
contributions in the entity or if they are willing to assume all liabilities that may be borne by the SE. In the latter
case, the entrepreneurs may be required to utilise their own personal assets in the event that the SE does not
have sufficient funds to pay for the obligations incurred as a result of the SE activities. This full liability concept
applies for an SE that is established as non-legal entity, such as a sole proprietorship, partnership, firm or
limited partnership (“CV”).
Meanwhile, under the limited liability concept, the entrepreneurs’ liability is limited to the amount of their
respective capital investment/contribution in the SE. This concept applies for SE that is established as a legal
entity, such as a foundation, association, cooperative or limited liability company (“PT”). Out of all of the
abovementioned entities, only foundations and associations are specifically arranged under Indonesian law to
achieve social and non-commercial purposes. foundations and associations are not permitted to undertake
any business activities, but may participate in a business by way of capital injection in a PT. foundations and
associations must use their income primarily to finance social activities.
In comparison, entities that are established primarily to obtain profit, such as PTs, are likely to use their profit
for the continuity of their business operation, before using it for any other purposes, such as for dividend
distribution or any other specific purpose. The utilisation for any specific purpose will depend on the discretion
of the entity’s internal organ. Therefore, commitment of the founders/partners/members/shareholders is
required in order to achieve social purposes. This could be done by describing the relevant social commitment
in the PT’s Articles of association (“AOA”).
Since foundations and associations are established specifically for social purposes, it may be easier for such
entities to obtain grants/donations from third parties, compared to business entities. Further, Indonesian law
only allows mass organizations, such as foundations or association, to conduct fundraising.
With respect to investment, non-legal business entities and cooperatives are only allowed to obtain capital
investments/contributions from Indonesian investors, while a PT may obtain capital investment from both
Indonesian and foreign investors. However, there are no regulations that prohibit legal and non-legal entities
in obtaining offshore financial support.
Meanwhile, with respect to the decision-making process, only a sole proprietorship can apply the “one man,
one vote” principle since has a single founder with absolute authority. Any other entities must involve all
of its founders/partners/members/shareholders in making a decision, either by way of consensus or voting
pursuant to the provisions of their respective AOAs.
With regard to ownership of assets, legal entities can hold a title over any assets. On the other hand, assets of
non-legal entities will be registered under the name of any of its founders/partners.
![Page 48: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/48.jpg)
48 ASEAN Social Enterprise Structuring Guide
POSSIBLE ENTITY STRUCTURES FOR SOCIAL ENTERPRISE IN INDONESIA
There are several structures that could be utilised by an SE in Indonesia, either in the form of a non-legal entity
or a legal entity.
The following non-legal entities are available in Indonesia:
i. Sole proprietorship
ii. Partnership
iii. Firm
iv. CV
DECISION TREE
Below is a decision tree to assist social entrepreneurs in deciding which type of entity is suitable for their SE activities.
Does the entity which undertakes the social activities would be separated with the entity that undertake the business activites?
Do investors want to limit their limability to the amount of their contribution?
Does the entity’s capital consist of among others foreign capital?
Foundation
YES NO
OR
Association
YES NO
Will there be more than one owner for the entity?
YES NO
Limited Liability Company (PT) Cooperative
YES NO
Sole ProprietorshipDo you have partners who only contribute capital to the company
and does not involve in the company’s management?
YES NO
CV Do you wish to establish the social enterprise under a joint name?
YES
NO
Firm
Partnership
![Page 49: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/49.jpg)
49 ASEAN Social Enterprise Structuring Guide
The following legal entities are available in Indonesia:
v. Non-profit oriented:
A. Foundation
B. Association
iii. Profit oriented:
A. Cooperative
B. PT
In general, the difference between a non-legal entity and a legal entity lies in the ability to assume legal
liabilities. Non-legal entities cannot be subject to legal rights and obligations and it will be the partners in
each entity that will be subject to all legal rights and obligations related to activities carried out in the name of
the entity. On the other hand, a legal entity can be subject to legal rights and obligations related to activities
carried out in its name.
The entity structure can have a significant impact on the SE itself, since it bears dual mission of profit and
social value. Each entity has certain advantages and disadvantages in this respect.
Below is a table comparing the characteristic of legal and non-legal entities.
Legal Entities Non-Legal Entities
Legal entities may be subject to the legal rights and obligations related to the activities carried out in the name of the entity.
The partners/founders will be subject to all legal rights and obligations related to the activities carried out in the name of the entity.
Separation of the founder’s assets and the entity’s assets.
There is no separation of the founder’s assets and the entity’s assets.
Most legal entities (except for PTs) may acquire grants and donations from government authorities.
Non-legal entities cannot acquire grants or donations from government entities.
The sustainability of the legal entity is not contingent on the founders. For instance, a legal entity can continue after the founders’ death or departure.
The sustainability of the entity is contingent on the founders. For instance, if one founder exits the agreement or passes away, the entity will cease to exist.
Legal entities can enter into agreements to receive loans and financial aid from financial institutions.
Founders could only enter into agreements to receive loans and financial aid from financial institutions in their own name.
![Page 50: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/50.jpg)
50 ASEAN Social Enterprise Structuring Guide
STRUCTURE 1 – SOLE PROPRIETORSHIP (PERUSAHAAN PERSEORANGAN OR “UD” OR PERUSAHAAN DAGANG OR “PD”)a. Overview
A sole proprietorship is a company established by one entrepreneur who has sufficient capital to undertake
a business activity. The sole entrepreneur shall act as the owner and manager of the sole proprietorship and
as a result, he/she shall be solely liable for any losses or debts that may arise from the sole proprietorship’s
business activities.
Indonesian laws do not specifically regulate sole proprietorship. The existence of sole proprietorship will
depend on the founder’s initiation and in practice, Indonesian business community acknowledged sole
proprietorship as a business entity.
Business line
There is no specific regulation on the types of business that may be carried out by a sole proprietorship.
However, in practice, a sole proprietorship is usually used for trading activities under the name of a trading
company.
Source of capital
The main source of a sole proprietorship’s capital is the personal assets of its owner. A sole proprietorship may
also receive loans from third parties to support its activities.
b. Advantages and Disadvantages
Advantages
√√ Establishment does not require any further ratification from any authority.
√√ The owner is fully entitled to all profits.
Disadvantages
√: The liability of the owner is limitless.
√: Limitation on source of financing.
√: This entity cannot be founded by a foreign citizen or foreign entity.
c. Establishment
There are no specific regulations that govern the establishment of a sole proprietorship under Indonesian law.
However, in practice, a sole proprietorship in Indonesia is usually established under the following procedure:
A. Sign a deed of establishment in the presence of a public notary.
B. Register the entity at the district court with jurisdiction over the entity’s domicile.
C. Obtain a company registration certificate (“TDP”) from the relevant regional company
registration office.
D. Register the entity with the district court with jurisdiction over its domicile.
E. Obtain a trade business license (“SIUP”) from the regional trading service office.
![Page 51: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/51.jpg)
51 ASEAN Social Enterprise Structuring Guide
F. Obtaining a business domicile certificate (“SITU”) from the regional government.
G. Obtain a tax registration number (“NPWP”) from the relevant local tax office.
d. Liability of the Founder
The owner is personally liable for any loss or payment arising from the sole proprietorship’s activities.
e. Tax Treatment
Even though a sole proprietorship is not a legal entity, it is treated as an agency that is subject to tax in
Indonesia. The profit of a sole proprietorship that will be distributed to the owner is not subject to income tax.
f. Ongoing Governance and Regulatory Obligations
A sole proprietorship is obliged to submit a report of its business activity, pursuant to its business license, to
the government. The use of the entity’s profits for social or non-commercial purposes shall depend on the
discretion of the owner.
g. Structure of the Internal Organisations
The internal structure of a sole proprietorship will depend on the owner’s discretion. The owner of the sole
proprietorship may manage it personally or hire employees to assist him/her. The owner of a sole proprietorship
shall be responsible for its management activities.
h. Governance
The owner of the sole proprietorship must be an Indonesian national/entity. A foreign national/entity cannot
establish a sole proprietorship in Indonesia.
i. Finance and Fundraising
Financing and funding for a sole proprietorship arise from the capital injected by its owner and business
profit. A sole proprietorship may also obtain loans from any financial institutions. Sole proprietorships are not
allowed to collect public donations.
![Page 52: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/52.jpg)
52 ASEAN Social Enterprise Structuring Guide
STRUCTURE 2 – PARTNERSHIP a. Overview
A partnership is an entity in which two or more individuals pool their resources and share profit and loss
in accordance with a partnership agreement. All partnerships must have lawful objectives and must be
conducted for the mutual benefit of the partners. Indonesian law prohibits the establishment of a partnership
for the benefit of only one partner. Each partner is required to contribute funding, assets, manpower or
expertise into the partnership.
Business line
Theoretically, a partnership may undertake any business activity in Indonesia as long as it is not prohibited
by the relevant prevailing regulations for its business sector. The regulations may also require a specific
additional license or other requirements for.
Source of capital
The main source of a partnership’s capital is contribution from the partners. All partners provide contributions
to the partnership pursuant to an agreement between themselves. A partnership may also receive loans from
third parties to support its activities.
b. Advantages and Disadvantages
Advantages
√√ Having more than one founder generally means that partnerships have more capital than sole proprietorships.
Disadvantages
√: The partners are personally liable for the partnership’s obligations to third parties.
√: Partnerships cannot be founded by foreign citizens or entities.
c. Establishment
The process for establishing a partnership is as follows:
A. The founders sign an agreement to establish the partnership (deed of establishment). It is
highly recommended to sign the agreement in a notarial deed format.
B. The partnership is registered at the district court with jurisdiction over the partnership’s domicile.
C. The establishment of the partnership is announced in the State Gazette of the Republic of
Indonesia (“State Gazette”).
D. The management of the partnership can then submit applications to obtain TDP, SIUP, SKDP
and NPWP of the partnership to the relevant authorities.
d. Liabilities of the Partners
All partners are personally liable for all of the obligations of the partnership to third parties. When dealing
with third parties, a partner is deemed to act on his/her own behalf unless he/she has been granted a power
of attorney by the other partners to act as their representatives.
![Page 53: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/53.jpg)
53 ASEAN Social Enterprise Structuring Guide
e. Tax Treatment
A partnership is treated as an agency that is subject to applicable tax in Indonesia.
However, the profit of a partnership that will be shared between all of the partners is not subject to income tax.
f. Ongoing Governance and Regulatory Obligations
The partnership’s partnership agreement will address the partnership’s rules internally. It can include the
rights and responsibilities of the management of the partnership. All profits arising in a partnership shall be
distributed to all partners pursuant to the calculation set out in the partnership agreement. The partners are
not permitted to use the profit directly for a social or non-commercial purpose prior to distributing such profits
to all of the partners. However, each partner, in his/her discretion, may use his/her respective portion of the
profit to fulfil a social or non-commercial purpose.
g. Structure of the Internal Organisations
There are no specific requirements under Indonesian law on the internal management structure for a
partnership. The internal structure will depend on the partners’ discretions, which is usually set out in the
partnership agreement.
All partners are obliged to:
A. provide contributions in the form of funding, goods, manpower, and/or expertise;
B. be personally liable for the obligations of the partnership under any contract/agreement which
they execute. A third party may only enforce an agreement against the executing partner.
However, the executing partner may request for joint responsibility from the other partner(s) if
he/she also acted for and on behalf all partners under a power of attorney; and
C. indemnify the partnership for any losses which they may cause, without the right to set the
indemnification off against the profit generated by the partnership.
All partners are entitled to:
A. receive profit distributed in accordance with the partnership agreement or in proportion to the
contribution provided by the relevant partner to the partnership; and
B. manage the partnership, unless the partnership agreement appoints a specific partner to
undertake the partnership’s management.
h. Governance
The founders of the partnership must be Indonesian citizens. Foreign investors/foreign shareholders are not
permitted to establish a partnership.
i. Finance and Fundraising
Financing and funding of a partnership arise from the capital contribution injected by all of its partners or
from its business profits.
A partnership may also obtain loans from any financial institutions. The partnership is not allowed to collect
public donations.
![Page 54: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/54.jpg)
54 ASEAN Social Enterprise Structuring Guide
STRUCTURE 3 – FIRMa. Overview
A firm is a special form of partnership, which is established to operate a company (i.e. to gain profit) using
a shared name. The company name may adopt the name of one or more of the partners, with or without
additional wording, or any other name.
Business line
A firm may undertake any business activity in Indonesia as long as it is no prohibited by the regulations for
that business sector. The regulations may also require a specific additional license or any other requirements
for such business sector.
Source of capital
The main source of a firm’s capital is the contribution from all of its partners. A firm may also receive loans
from third parties to support its activities.
b. Advantages and Disadvantages
Advantages
√√ The capital available to a firm is generally larger than that available to a sole proprietorship.
Disadvantages
√: Each partner has unlimited liability for all debts incurred in the name of the firm.
√: Loss caused by one partner shall be borne jointly and severally by all of the partners.
√: The firm cannot be founded by foreign investor.
c. Establishment
The process for establishing a firm is as follows:
C. The deed of establishment is signed in a notarial deed format.
D. The firm is registered at the district court with jurisdiction over the firm’s domicile.
E. Establishment of the firm is announced in the State Gazette.
F. The management of the firm submits applications to the relevant authorities to obtain the firm’s
TDP, SIUP, SKDP and NPWP.
d. Liabilities
Each partner of the firm has unlimited liability under all agreements entered into and activities conducted
in the name of the firm. Each partner shall be jointly liable for the firm’s loss. If a payment obligation is
outstanding and payable to any third party, that third party may enforce it against any and all of the partners
of the firm. Full payment of the obligation by one partner shall be sufficient to release the other partners
from the obligation. In addition, a third party may still sue a partner who has resigned from the firm for any
outstanding payment under any contract/agreement.
![Page 55: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/55.jpg)
55 ASEAN Social Enterprise Structuring Guide
e. Tax Treatment
A firm is treated as an agency that is subject to applicable tax in Indonesia. However, the profit of a firm that
will be shared between all of the partners is not subject to income tax.
f. Ongoing Governance and Regulatory Obligations
The firm’s partnership agreement will address the firm’s rules internally. It can include the rights and
responsibilities of the firm’s management. All profits arising in a firm shall be distributed to all partners
pursuant to the calculation set out in the firm’s partnership agreement. The partners are not permitted to
use the profit directly for a social or non-commercial purpose prior to distribution to partners. However,
each partner, in his/her discretion, may use his/her respective portion of the profit to fulfil a social or non-
commercial purpose.
g. Structure of the Internal Organisations
The partners, whether in the deed of establishment or in a separate deed, shall set out the name of the
partner who is authorised to carry out the firm’s management. It is advisable that the deed also names the
partner(s) that can represent the firm before any third party. If the deed does not stipulate the firm’s authorised
representative, then all partners shall be deemed to have the right to represent the firm.
There are no other specific requirements under Indonesian laws on the internal management structure for a
firm. The internal structure shall depend on the partners’ discretion.
All partners are obliged to:
G. provide contribution in the form of funding, goods, manpower and/or expertise; and
H. be jointly and severally liable for all of the firm’s debts under all contracts entered into with third
parties in the name of the firm.
All partners are also entitled to:
A. receive profit distribution in accordance with the firm’s partnership agreement or in proportion
to the contribution provided by the relevant partner to the firm;
B. appoint one or more partners to be responsible for the management of the firm;
C. review and control the firm’s records;
D. approve any new partners to be added into the firm;
E. approve the replacement of a partner if the firm’s partnership agreement provides for the
replacement of a partner;
F. sue the firm if a partner is also a creditor of the firm and to receive payment sourced from the
firm’s treasury;
G. represent the firm before any third party, provided that the partnership agreement or any other
deed executed by the firm do not appoint a specific partner as its authorised representative.
Management can only be carried out by a partner who is appointed to do so by the partnership agreement or
any other deed executed by the firm.
![Page 56: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/56.jpg)
56 ASEAN Social Enterprise Structuring Guide
h. Governance
The founders of the firm must be Indonesian citizens. Foreign citizen and foreign entities are not permitted to
establish a firm.
i. Finance and Fundraising
Financing and funding of a firm comes from the capital contributions of its partners or from its business
profits. A firm may also obtain loans from any financial institutions. The firm is not allowed to collect donations
from the public.
![Page 57: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/57.jpg)
57 ASEAN Social Enterprise Structuring Guide
STRUCTURE 4 – LIMITED PARTNERSHIP (CV)a. Overview
Under Indonesian law, a CV is a company that is established by: (i) an individual or several individuals who are
personally responsible for the company and all of its debts; and (ii) an individual or several individuals who
merely provide contribution, financial or otherwise. In general, a CV is a firm with two types of partner:
A. Active partners manage the CV and are personally liable for the CV’s actions. The active
partners are the representatives of the CV, therefore, any third parties must liaise only with
these partners for any transactions involving the CV.
B. Silent partners only contribute in the form of funding, goods or manpower for the operation of
the CV, and do not manage the CV in its day-to-day business. Third parties often do not know of
or have any information about the silent partner.
Business line
There is no specific regulation on the types of business that may be carried out by a CV, and they may
theoretically undertake any business activity. However, before conducting any business as a CV, the founders
must check the regulations regarding their business activity to identify whether it can be carried out by a CV
or not, and whether there are any licensing or other requirements.
Source of capital
The main source of a CV’s capital is the contribution from all of its partners. All partners provide their respective
contributions as agreed between them. Any unpaid amount from a partner’s contribution shall be considered
as a debt owed to the CV. A CV may also receive loans from third parties to support its activities.
b. Advantages and Disadvantages
Advantages
√√ The existence of a silent partner gives room to any party who wants to provide additional working capital to the CV without being involved in the CV’s management.
Disadvantages
√: No limit on the liability of each active partner for debts incurred in the name of the CV, while silent partners are only liable up to the amount of their individual contributions to the CV.
√: Loss caused by one active partner shall be borne jointly and severally by all active partners, while silent partners’ liability is limited to the amount of their respective contribution to the CV.
√: Cannot be founded by foreign investors.
c. Establishment
The procedure for establishing a CV is the same as the procedure for establishing a firm. Please refer to
section (c) (iii) above.
![Page 58: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/58.jpg)
58 ASEAN Social Enterprise Structuring Guide
d. Liabilities of the Founders and the Internal Organisation
A. Active Partners
The active partners shall be liable for all liabilities of the CV to third parties with their own
assets. If the CV’s assets are insufficient to cover its liabilities, then the active partners shall be
jointly liable for the remaining amount of such liabilities with its own assets.
B. Silent Partners
The silent partners are only liable up to the amount of their individual contributions to the CV.
Third parties are not able to enforce any of a CV’s payment obligations against the personal assets
of the silent partners. A silent partner who becomes involved in the management of the CV shall
be immediately deemed as an active partner.
e. Tax Treatment
A CV is treated as an agency that is subject to applicable tax in Indonesia. The profit of a CV that will be
distributed to all partners is not subject to income tax.
f. Ongoing Governance and Regulatory Obligations
The CV’s partnership agreement will address the CV’s rules internally. It can include the rights and
responsibilities of the management of the CV. All profits arising in the CV shall be distributed to all partners
pursuant to the calculation set out in the CV’s partnership agreement. The partners are not permitted to use
the profit directly for a social or non-commercial purpose prior to distribution of the profits. However, each
partner, in his/her discretion, may use his/her respective portion of profit to fulfil a social or non-commercial
purpose.
g. Structure of the Internal Organisation
The internal structure of a CV is determined in its partnership agreement, and the CV shall be managed by
the active partners. The active partners may receive a salary and other benefits for their management duties.
h. Governance
The founders of a CV must be Indonesian citizens. Foreign investors/foreign shareholders are not permitted
to establish a CV.
i. Finance and Fundraising
Financing and funding of a CV comes from the capital contributions by all of its partners or from its business
profits. In addition, a CV may obtain loans from any financial institutions.
A CV is not allowed to collect donations from the public.
![Page 59: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/59.jpg)
59 ASEAN Social Enterprise Structuring Guide
STRUCTURE 5 – FOUNDATION a. Overview
In Indonesia, a foundation is probably the most suitable form of a legal entity for a SE due to the inherent
similarities with the purposes and objectives of a SE. In Indonesia, a foundation is known as a legal entity
intended as a vehicle for attaining certain social, religious, or humanitarian purposes. However, what
differentiates an SE from a foundation under Indonesian laws is that a foundation is not permitted to directly
undertake any business activities as part of its main activities.
Indonesia recognises two types of foundation: (1) an Indonesian foundation, which is established under
Indonesian laws; and (2) a foreign foundation, which is established under foreign law. Indonesian law treats
Indonesian foundations differently from foreign foundations, especially in terms of their respective licensing
and activity requirements. This chapter will only focus on Indonesian foundation.
No business activities
A foundation is not permitted to directly carry out any business activities in order to generate profits.
Indonesian laws only allow a foundation to undertake non-commercial activities. However, a foundation may
be indirectly involved in a business by (i) establishing a company (i.e., a PT), or (ii) participating in one or more
business entities, provided that the activities of such entity are consistent with the purposes and objectives
of the foundation, public order, ethics and prevailing laws. Further, the participation of such foundation in
any business entity shall not be more than 25% of the foundation’s total assets value and any surplus of the
company must not be distributed to the organ of the foundation.
Source of capital
A foundation’s capital can come from contributions from all of its founders, donations, benefaction assets (waqf,
which is a donation of property given by Muslims to be held in trust and used for religious purpose), grants,
grants under a will, and other sources that are not contrary to the foundation’s AOA and prevailing laws.
Social activity
A foundation is established mainly for non-commercial purposes and to engage in social, religious, or
humanitarian sectors, such as (i) formal and non-formal education, (ii) hospital and laboratory, (iii) research
institutions, (iv) constructing and managing places of worship, (v) distributions of donation, (vi) disaster relief,
(vii) environment protection or (viii) others.
b. Advantages and Disadvantages
Advantages
√√ Not required to submit any reports to any government entities.
√√ Less complex to establish and relatively fast registration/establishment procedure.
√√ Subject to certain tax exemptions.
Disadvantages
√: Limitation on the use of the foundation’s funds.
√: Not permitted to engage in any commercial activities.
√: Obliged to prepare and publish source of funding.
![Page 60: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/60.jpg)
60 ASEAN Social Enterprise Structuring Guide
c. Establishment
A foundation may be established by Indonesian citizens, foreign citizens, Indonesian legal entities, or foreign
legal entities. If a foundation is established by Indonesian citizens or entities, the initial assets of the foundation
must be a minimum of IDR 10,000,000.
If at least one of the founders is a foreign entity or citizen, the initial assets of the foundation must be a
minimum of IDR 1,000,000,000, and if the foundation is established by a foreign legal entity the initial assets
of the foundation must be a minimum of IDR 10,000,000,000. The foreign founder must have been living for
in Indonesia five consecutive years if it is an individual, or conducting activities in Indonesia for five consecutive
years if it is entity.
The procedure for establishing a foundation is as follows:
C. An application for the foundation’s name is submitted to the Ministry of Laws and Human Rights
(“MOLHR”).
D. The founders or their respective proxies sign a deed of establishment before a public notary.
E. The public notary submits the signed deed of establishment to the MOLHR.
F. The MOLHR will issue an MOLHR decree ratifying the establishment of the foundation and
announce the deed of establishment in the State Gazette.
G. the management of the foundation further submit applications to the relevant authorities in
order to obtain a SKDP and a NPWP for the foundation.
The foundation will legally exist from the date of the issuance of MOLHR Decree.
d. Liabilities of Internal Organizations
Board of Advisors
The board of advisors (“BOA”) is responsible for evaluating the foundation’s management, as conducted by
the board of executives (“BOE”). Indonesian laws do not hold members of the BOA personally liable for any
loss suffered by the foundation or any other party due to the foundation’s management or activities.
Board of Executives
The BOE is in charge of all of the foundation’s management activities. Each member of the BOE is personally
liable for any loss of or damage suffered by the foundation and/or any third party as a result of its management.
In the event that the foundation is declared bankrupt, the members of BOE shall be jointly liable for the loss
if (i) such bankruptcy is caused by the fault or negligence of the BOE in managing the foundation, and (ii) the
foundation’s assets are not sufficient to cover such loss. Any members of the BOE who could prove that the
bankruptcy is not caused by his/her fault or negligence shall not be held liable for such loss with the other
member(s) of the BOE.
Board of Supervisors
The Board of Supervisors (“BOS”) is in charge of supervising the foundation’s management activities, as
conducted by the BOE. In the event that the foundation is declared bankrupt, the members of BOS shall be
jointly liable for the loss if: (i) the bankruptcy is caused by the fault or negligence of the BOS in conducting its
![Page 61: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/61.jpg)
61 ASEAN Social Enterprise Structuring Guide
supervisory duty; and, (ii) the foundation’s assets are not sufficient to cover the loss. Any member of the BOS
who can prove that the bankruptcy is not caused by his/her fault or negligence shall not be held liable for the
loss with the other member(s) of the BOS.
d. Tax Treatment
A foundation receives certain tax benefits under Indonesian law. Most of its sources of funding (including
any dividends from participation in a PT) are tax exempt, provided that there is no business or ownership
relationship with the parties providing the funding.
e. Ongoing Governance and Regulatory Obligations
Within five months of the end of the foundation’s financial year, the BOE must prepare an annual report
containing, at least, a report on the foundation’s activities for the relevant year and its financial statement. The
report must be signed by the BOE and the BOS and approved by the BOA. The foundation must announce
its annual report (including a financial statement audited by a public accountant) in a national newspaper, if:
H. the foundation receives financial aid of IDR 500,000,000 or more in one financial year; or
I. the foundation has assets (other than waqf assets) of IDR 20,000,000,000 or more.
Further, the foundation shall not distribute any dividends received from capital participation in any PT to the
organ of the foundation.
g. Structure of the Internal Organisations
The internal organisations of a foundation must consist of three boards, namely the BOA, BOE and BOS.
No member of any board may hold simultaneous positions on two or more boards of the same foundation, or
be a director or commissioner of a PT in which the foundation has capital participation. The members of the
BOE and BOS are appointed for a 5-year term and such term may be extended, unless he/she is dismissed
based on the decision of the BOA’s meeting at any time after his/her appointment. There is no prescribed term
of office for BOA members. Any change to the composition of any board shall be reported to the MOLHR.
Further, any foreign board members must also obtain Indonesian working permits to undertake their duties
in the foundation.
Board of Advisors
The BOA may consist of one or more members. If there is more than one advisor in the foundation, one of them
must be appointed as the chairman. Foreign individuals may be appointed as members of the BOA as long as
they have been living in Indonesia for five consecutive years and hold valid stay permits.
![Page 62: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/62.jpg)
62 ASEAN Social Enterprise Structuring Guide
The obligations and rights of the BOA are as follows:
Obligations Rights
1) Hold a meeting at least once a year to evaluate the finance and liabilities of the foundation on the previous year as a basis of consideration for the foundation’s development in the following year.
2) Report any change to the BOE and BOS compositions to the MOLHR.
1) Decide on amendments to the AOA.
2) Appoint and dismiss members of the BOE and BOS.
3) Set out the general rules of the foundation based on the AOA.
4) Approve the work program and the draft annual budget of the foundation.
5) Make decisions on any merger or dissolution of the foundation.
Board of Executives
The foundation shall be managed by the BOE, which shall consist of at least a chairman, a secretary and a
treasurer. If there is more than one executive appointed to the BOE, one of them must be appointed as the
general chairman.
If one of the founders is a foreign citizen/entity, it must be ensured that at least the chairman, secretary or
treasurer of the foundation is an Indonesian citizen.
Members of the BOE may receive a salary from the foundation in order to ensure professionalism in the
foundation’s management.
The general obligations and rights of the BOE are as follows:
Obligations/Duties Rights/Authorities
1) Manage the foundation.
2) Keep records of any information regarding the obligations, rights, and any other information related to the foundation’s business activities.
3) Keep records of the foundation’s financial affairs in the form of accounting and other supporting financial administrative documents.
4) Prepare an annual report within five months of the closing date of the previous financial year. The annual report shall contain at least: (1) the foundation’s business activities and achievements in the previous financial year; and, (2) the foundation’s financial report, which contains the foundation’s financial position in the last year, activities report, cash flow report and financial notes.
1) Represent the foundation both before and outside any court.
2) Appoint and dismiss the foundation’s activity organizer.
3) Propose extensions of the term of the foundation.
4) Sign the foundation’s annual report.
5) Propose mergers to the BOA.
6) Act as a liquidator in the event that the foundation is liquidated.
![Page 63: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/63.jpg)
63 ASEAN Social Enterprise Structuring Guide
The AOA of the foundation may set out other obligations/duties and rights/authorities of the BOE. Further,
members of the BOE are prohibited from taking any of the following actions:
A. representing the foundation if:
(aa) there is a lawsuit between the foundation and that member of the BOE; or
(bb) there is conflict of interest between the foundation and that member of the BOE;
B. binding the foundation as a guarantor of a loan;
C. transferring assets of the foundation, unless approved by the BOA;
D. using the foundation’s assets as security for the benefit of any third party; and
E. other prohibitions provided in the AOA of the foundation.
Board of Supervisors
The BOS is responsible for the supervision of the management and foundation activities conducted by the
BOE. The BOS must consist of one or more members. Members of the BOS do not receive a salary from the
foundation.
The general obligations and rights of the BOS are as follows:
Obligations/Duties Rights/Authorities
1) Supervise the management of the foundation, as conducted by the BOE.
2) Inspect any of the foundation’s financial documents.
3) Be aware of every action taken by the BOE.
1) Provide advice to the BOE on the foundation’s business activities.
2) Temporarily dismiss any member of the BOE by disclosing the reason behind such dismissal.
h. Governance
There is no prohibition against foreigners sitting on the management board of the foundation.
i. Finance and Fundraising
A foundation is allowed to receive foreign grants from various donors from time to time. A foundation must
publish a summary of its annual report by posting it on the announcement board at the foundation’s office.
The report shall be audited and announced in an Indonesian daily newspaper if the foundation:
A. receives national or international aid and/or third party aid of IDR 500,000,000 or more, within
a financial year; or
B. obtains any asset other than benefaction assets in the amount of IDR 20,000,000,000 or more.
A foundation, unless established by foreign entity, is allowed to conduct fundraising by collecting donations
from the public after obtaining a fundraising permit from any of the following authorities:
A. The Ministry of Social Affairs (“MSA”), for any fundraising activities that are conducted nationally
or in more than one province, or if the fundraising is purported for any offshore social activities.
B. A provincial governor, for any fundraising activities conducted only within one province.
C. The regent, for any fundraising activities conducted only within one regency.
![Page 64: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/64.jpg)
64 ASEAN Social Enterprise Structuring Guide
STRUCTURE 6 – ASSOCIATIONa. Overview
An association is a legal entity consisting of individuals which is established to pursue certain social, religious
or humanitarian purposes and objectives and does not distribute profit to its members. Compared to other
legal entities, an association is not thoroughly regulated under Indonesian law. This is due to the absence of a
specific law governing associations, unlike other legal entities. A bill concerning associations was formulated
in 2015, but it is unclear when the final bill will come into effect. Nonetheless, the procedure for establishing
an association is covered by several government regulations.
No Business Activities
An association is a non-profit oriented entity and it could not engage in any business activity. However, it can
invest in a PT.
Sources of Capital
An association’s capital comes from the contributions of its founders, donations, members’ deposits, grants,
grants under a will and/or other sources that are not contrary to the foundation’s AOA or the law.
Membership
Members of the association shall be validated by the association’s BOM, as evidenced by a membership card.
Each member must pay a membership deposit pursuant to the association’s AOA.
b. Advantages and Disadvantages
Advantages
√√ Not required to submit any report to any government entities.
√√ Less complex and relatively fast registration/establishment procedure.
√√ The main purpose focuses on social benefit.
Disadvantages
√: Not permitted to engage in any commercial activities.
√: Not subject to certain tax exemptions.
c. Establishment
The procedure for establishing an association is as follows:
A. Apply to the MOLHR for the proposed name of the association.
B. The founders or their authorized proxies sign the deed of establishment before a public notary.
C. The public notary submits the signed deed of establishment to the MOLHR, together with other
required documents, to obtain ratification.
The association shall legally exist from the issuance date of MOLHR ratification.
![Page 65: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/65.jpg)
65 ASEAN Social Enterprise Structuring Guide
d. Liabilities
Members of an association or an association’s BOM and BOS are not personally liable for any agreement in
relation with the association.
e. Tax Treatment
Associations are subject to certain tax liabilities, such as income tax and value-added tax. Associations do not
enjoy any special tax treatment.
f. Ongoing Governance and Regulatory Obligations
The association’s AOA must address the association’s internal rules. It can include the rights and responsibilities
of the management of the association. The activities of an association will vary, but must meet the non-
commercial social, religious, or humanitarian purposes for which the association was established. The social
activities and social purpose shall be written in the deed of establishment of an association.
g. Structure of the Internal Organisations
An association shall consist of the following three internal organisations: (A) the meeting of the members of
the association (“MMA”), which has the highest power in an association and can decide on management and
operational policies; (B) the BOM, which manages and operates the association; and, (C) the BOS, which gives
advice to the BOM in operating the association.
A. MMA
An MMA is convened by the BOM and shall be attended by members of the association. An MMA
has the highest power in an association and may decide on the management and operational
policies of such association. An MMA may adopt resolutions by way of consensus or by simple
majority vote.
There are two types of MMA: (i) annual MMAs, which are convened no later than six months
after the end of the association’s accounting year, mainly to hear and approve or reject the
BOM’s annual report; and (ii) extraordinary MMAs, which can be held at any time.
In the MMA, each member of the association shall have equal voting right, unless the AOA
provides otherwise. The MMA’s decision is based on consensus or simple majority vote.
B. BOM
Members of the BOM are appointed at an MMA from and by the members of the association.
Members of BOM at least shall consist of a Chairman, a Secretary and a Treasurer. Requirements
that must be fulfilled by an individual in order to be a member of the BOM are stipulated in
the association’s AOA. Any BOM member may be temporarily terminated by the BOS if such
member acts in a contradictory manner with AOA and /or prevailing laws and regulations.
The Chairman and one member of the BOM may represent the association before and outside
any court of law.
![Page 66: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/66.jpg)
66 ASEAN Social Enterprise Structuring Guide
C. BOS
Members of the BOS are appointed from and by the members of the association in an MMA.
Requirements that must be fulfilled by an individual in order to be a member of the BOS are
stipulated in the association’s AOA.
h. Governance
There is no prohibition against foreigners being members of an association.
i. Finance and Fundraising
The association is allowed to conduct fundraising by collecting donations from the public after it obtains a
fundraising permit from any of the following authorities:
A. the MSA, for any fundraising activities that are conducted nationally, in more than one province,
or for any offshore social activities; or
B. the provincial governor, for any fundraising activities conducted only within one province; or
C. the regent, for any fundraising activities conducted only within one regency.
![Page 67: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/67.jpg)
67 ASEAN Social Enterprise Structuring Guide
STRUCTURE 7 – COOPERATIVEa. Overview
A cooperative is an autonomous association of individuals who voluntarily unite their economic, social
and cultural needs and aspirations through a jointly-owned and democratically-controlled enterprise. The
members of a cooperative are the owners and also the service users of the cooperative. The cooperative’s
activities are based on the principle of cooperation, such as voluntary and open membership, democratic
member control, fair distribution of net income based on the services conducted by each member and limited
remuneration towards capital and independency. The purpose of a cooperative is to improve the welfare of its
members and the local community.
Recently, cooperatives in Indonesia have begun calling themselves SEs since the principles and purposes of
cooperatives are similar to the values of social enterprise. Similar to an SE, a cooperative needs to balance the
pursuit of profit against the economic needs and interests of the cooperative’s members and their communities.
A cooperative is particularly attractive for small-scale entrepreneurs who have business potential but have
small capital. Through a cooperative, small entrepreneurs can pool their capital to accommodate the
development of their respective businesses or their economic needs.
Cooperatives are divided into two categories:
A. Primary cooperatives: cooperatives established and made up by at least 20 Indonesian citizens
who have the same business activities (e.g., farmers).
B. Secondary cooperatives: cooperatives established and made up by at least three primary
cooperatives.
Business line
The type of business conducted by a cooperative shall be determined based on the economic needs of its
members. In this respect, a cooperative may undertake one business activity or several business activities in
the production, distribution, marketing, services, credits and savings sectors and/or other business activities,
based on conventional or Sharia economic principals.
Certain business activities are subject to licensing requirements, and cooperatives may only operate in certain
business sectors.
Examples of activities that a cooperative may conduct in order to develop the economic interest of its members
include:
• providing loans to its members or community members using simple procedures and low interest;
• providing certain goods and materials based on the needs of its members;
• activities involving the sale of products produced by its members.
![Page 68: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/68.jpg)
68 ASEAN Social Enterprise Structuring Guide
Sources of capital
A cooperative may obtain capital from equity, debt capital, or capital participation from its members.
Equity
A cooperative can obtain equity through:
• principal deposits paid by each member upon admission. This deposit cannot be withdrawn by a
member during his/her membership;
• mandatory periodic deposits from members. The amount of the mandatory deposit varies for each
member. This deposit cannot be withdrawn by a member during his/her membership;
• reserved funding, which is reserved from the cooperative’s revenue for its own capital to cover any loss
suffered by the cooperative (if relevant); and
• donations from individuals and/or other entities.
Debt Capital
A cooperative may also obtain debt capital from the following parties or methods:
• its members, including any prospective members who fulfil the relevant membership requirements;
• other cooperatives or their members based on a cooperation agreement between the cooperatives;
• a bank or any other financial entity, subject to the prevailing laws;
• by issuing bonds or other promissory notes in accordance with the prevailing laws; and
• any other lawful source, such as a loan from a non-member under a non-public offering.
Capital Participation
Capital participation means participation in the capital of a cooperative by providing funding and/or goods
that can be valued financially by investors in order to increase and strengthen the capital of the cooperative
and to increase its business activities. Capital participation may be provided by the government, citizens,
business entities and/or other entities based on an agreement.
Membership
A cooperative’s members are its owners, as well as its customers or service users. The membership in a
cooperative shall be recorded in a Membership Registry Book managed by the BOM. A primary cooperative is
required to have at least 20 Indonesian citizens as its members, while a secondary cooperative must at least
have three other cooperatives as its members.
Membership of a cooperative shall be based on similar economic interest within the scope of that cooperative’s
business operation. Acceptance and termination of membership shall be based on the provisions of the
cooperative’s AOA and determined by its BOM.
Any prospective member who has not fulfilled all of the membership criteria under a cooperative’s AOA, or any
foreign citizen who intends to be a member of a cooperative, may be accepted as an extraordinary member
pursuant to any specific requirements, rights, and obligations provided in the cooperative’s AOA.
![Page 69: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/69.jpg)
69 ASEAN Social Enterprise Structuring Guide
Membership is not transferable and may be terminated for any of the following reasons:
(aa) voluntarily resignation by the member;
(bb) removal of the member by the BOM for no longer fulfiling the membership criteria under the
cooperative’s AOA, defaming the cooperative’s reputation, or causing any loss to the cooperative;
(cc) the member has passed away; or
(dd) the cooperative has been dissolved.
b. Advantages and Disadvantages
Advantages
√√ profit-oriented to improve the welfare of the cooperative’s members;
√√ empowerment of human resources (member of cooperatives);
√√ less complex and relatively fast registration/establishment procedure; and
√√ the required capital is relatively low.
Disadvantages
√: no special tax treatment;
√: relatively difficult to expand the business due to limitation in source of funding; and
√: non-competitive.
c. Establishment
Requirements
A cooperative must:
(aa) be established by 20 Indonesian citizens (for a primary cooperative) or 3 existing cooperatives (for
a secondary cooperative);
(bb) conduct a business activity that directly and economically benefits its members;
(cc) have divided its business into three: its main business, supporting business, and supplementary
business, and stipulated it in its AOA; and
(dd) have received fully paid-up membership deposits from the founders.
Procedure
The procedure for establishing a cooperative is as follows:
(aa) The founders invite all potential founders to a meeting to discuss the content of the cooperative’s
AOA, which is documented in a minutes of meeting.
(bb) An application for the cooperative’s proposed name is submitted to the relevant authority.
(cc) The deed of establishment and AOA are signed, in a notarial deed format, before a notary.
![Page 70: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/70.jpg)
70 ASEAN Social Enterprise Structuring Guide
(dd) The notary submits an application for approval of the cooperative’s deed of establishment, along
with accompanying documents, to the Ministry for Cooperative and Small and Medium Scale
Entrepreneurs (“MOC”).
(ee) The MOC issues a decree ratifying the cooperative’s deed of establishment, or rejects the
application in writing, within three months of submission. If the application is rejected, the
founders may submit a second application. The MOC’s decision on the second application shall
be final and the founders cannot submit the same application again.
(ff) The MOC announces the establishment of the cooperative in the State Gazette and registers the
cooperative in the public register of cooperatives.
(gg) The management of the cooperative submit applications to the relevant authorities in order to
obtain the cooperative’s SKDP, TDP, and NPWP.
A cooperative shall be deemed to be a legal entity under Indonesian law once it receives its deed of
establishment is ratified by the MOC.
d. Liabilities
The members of the BOM has an extended liability towards the cooperative compared to all of the cooperative’s
other internal organisations. Each member of the BOM may be required to, either jointly with the other
members of the BOM, or individually, be responsible and personally liable for any loss or damage suffered by
the cooperative due to his/her negligent or omission in conducting his/her duties.
In addition, a member of the BOM may also be personally liable for any loss or damage caused by his/her
intentional mistake. The liabilities of the MMA, the members and the BOS are provided in the cooperative’s
AOA.
e. Tax Treatment
A cooperative is subject to certain tax liabilities, such as on income tax and value-added tax. Pursuant to the
prevailing taxation laws in Indonesia, cooperatives do not enjoy any special tax treatment.
f. Ongoing Governance and Regulatory Obligations
The cooperative’s AOA addresses the cooperative’s rules internally. It can include the rights and responsibilities
of the management of the cooperative.
By the end of each financial year, the cooperative shall prepare an annual report, which must be signed by
the MMC. Such report must contain at least the annual calculation of the cooperative, which comprised of the
balance sheet from the last financial year and the ongoing financial year and the cooperative’s condition and
its business surplus.
The MMC may stipulate the distribution of the amount of the cooperative’s surplus to the cooperative members
and the amount of surplus that will be used for training and/or other purpose for the benefit of the cooperative.
g. Structure of the Internal Organisations
A cooperative shall consist of three internal organisations, namely, (1) MMC, which has the highest power in
a cooperative and may decide on the management and operational policies of such cooperative, (2) BOM,
![Page 71: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/71.jpg)
71 ASEAN Social Enterprise Structuring Guide
which manages and operates the cooperative and (3) BOS, which supervises the implementation of policies
and management in such cooperative. In addition, the BOM may appoint a business manager (the “Business
Manager”) to assist the management and operation of the cooperative’s business unit.
C. MMC
An MMC is convened by the BOM and shall be attended by members of the cooperative. The
MMC has the authorities that are not given to the other boards of the cooperative to take, among
others, the following actions:
(aa) determining the provisions of the cooperative’s AOA;
(bb) set out the general policies on the management and operation of the cooperative;
(cc) nominating, appointing and dismissing members of the BOM and BOS;
(dd) approving the work plan and budget plan and ratifying the cooperative’s financial
statement;
(ee) holding the BOM accountable for the management of the cooperative;
(ff) ratifying the responsibility report of the BOM;
(gg) distribution of profit; and
(hh) undertaking merger, consolidation, demerger or dissolution of the cooperative.
The resolution of MMC is adopted by way of consensus or by a simple majority vote.
MMC consists of (i) annual MMC, which must be held no later than 6 months after the end of
the financial year of the cooperative and (i) extraordinary MMC, which may be held at any time.
D. BOM
The members of BOM are appointed from and by the members of the cooperative in an MMC.
When a cooperative is first established, the composition and the names of each members of
the BOM shall be stipulated in its deed of establishment. The maximum term of office of the
members of the BOM is 5 (five) years.
Requirements that must be fulfilled by an individual in order to be a member of the BOM are
stipulated in the cooperative’s AOA.
E. BOS
The members of BOS are appointed from and by the members of the cooperative in an MMC.
When a cooperative is first established, the composition and the names of each member of
the BOS shall be stipulated in its deed of establishment. The maximum term of office of the
members of the BOM is 4 (four) years.
Requirements that must be fulfilled by an individual in order to be a member of the BOS are
stipulated in the cooperative’s AOA.
![Page 72: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/72.jpg)
72 ASEAN Social Enterprise Structuring Guide
F. Business Manager
The Business manager is appointed by BOM to assist the BOM in conducting the management
and operation of the cooperative. The Business Manager is responsible to the BOM and
the relationship between the BOM and the Business Manager is a cooperation based on an
agreement.
There is no requirement for a cooperative to have a Business Manager and whether a Business
Manager is appointed in a cooperative shall be subject to the discretion of the BOM and MMC’s
approval. The appointment of a Business Manager does not waive the liability of BOM over the
business unit managed by such Business Manager.
h. Governance
The members of a cooperative must be Indonesian citizens. Foreigners are prohibited from becoming a
member of a cooperative.
i. Finance and Fundraising
There are two types of capital participations in a cooperative, namely, capital participation and Sharia capital
participation (collectively referred to as “Capital Participation”). A cooperative can obtain Capital Participation
from the government, members of the cooperative, the society, any legal entities and any business entities. Any
party who funds a cooperative through Capital Participation shall not receive any voting right in an MMC. Only
a cooperative that has convened an MMC for the last two successive years and fulfilled other requirements
under Indonesian law can receive and manage Capital Participation.
Business activities funded through Capital Participation are managed by the cooperative. The relevant
investors may also participate in the management of such activities if it has been agreed in writing between
the cooperative and the investors beforehand. The provider of the Capital Participation shall be entitled to
receive distributed profits from the business activities funded by their Capital Participation.
![Page 73: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/73.jpg)
73 ASEAN Social Enterprise Structuring Guide
PTa. Overview
A PT is a commercial business entity whose main goal is to make profit, and is the most common type of
company in Indonesia. At first glance a PT may not seem to be a type of legal entity that can be utilised by an
SE, as an SE requires most of its profits to be used for social purposes. However, this does not mean that the
concept of PT cannot be adjusted based on the spirit of SE.
While it is not common, it is possible for a PT to arrange its AOA to state that the profits generated by the PT
shall be utilised not as dividends, but rather, for social purposes. This way, a PT can operate just like a SE.
Alternatively, a PT may also arrange its AOA so that the majority of its profits are used for corporate social
responsibility programs.
Business line
A PT may undertake any business activities in Indonesia by obtaining the relevant business license from
the government and/or fulfilling the prevailing regulatory requirements. There are limitations on capital
participation of a foreign investment company (“PT PMA”) that conduct certain business activities.
Source of capital
The main source of a PT’s capital is issued capital in the form of shares, held by the shareholders in the amount
set out in the PT’s AOA. The issued capital must be paid-up in full by the shareholders immediately. For a PT
PMA, the capital structure must be a minimum of:
A. IDR 10,000,000,000 (ten billion Rupiah) (excluding building and land) in authorized capital;
and,
B. at least IDR 2,500,000,000 (two billion five hundred million Rupiah) in issued and paid-up
capital.
In addition, the participation of each shareholder in a PT PMA must be at least IDR 10,000,000 (ten million
Rupiah).
A PT may also use any other sources of financing, including loans from third parties, to support its activities,
or issue securities to obtain additional working capital.
b. Advantages and Disadvantages
Advantages
√√ Can conduct various line of business
√√ Wide variety of options for financing and raising funds, e.g., foreign investor participation, initial public offering, loans etc.
Disadvantages
√: Relatively complex and long registration/establishment procedure, especially for PT PMAs
√: Relatively expensive
![Page 74: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/74.jpg)
74 ASEAN Social Enterprise Structuring Guide
c. Establishment
The procedure for establishing a PT is as follows:
A. An application is made to the MOLHR for the proposed name of the PT.
B. An account is created on the online system of the Indonesia Investment Coordinating Board
(Badan Koordinasi Penanaman Modal or “BKPM”), in preparation for step (c), below.
C. An application for principal approval from the BKPM is made through BKPM’s online system.
D. The deed of establishment is prepared by the founders or their authorized proxies and signed
before a public notary.
E. The public notary submits the signed deed of establishment and other requirements to the
MOLHR to obtain ratification.
F. The PT’s NPWP makes an application to the relevant tax office.
G. The PT opens a bank accound.
H. The PT’s TDP applies to the relevant regional Trade Service Office.
I. The MOLHR announces the PT’s deed of establishment in the State Gazette and Supplement
to the State Gazette by.
A PT is deemed to legally exist from the date of issuance of the MOLHR ratification.
d. Liabilities
Shareholders
In principal, a shareholder’s liability is limited to the amount that they have invested in the company and for
any unpaid amount on such shareholder’s shares in the company (if any). However, a shareholder may be
personally liable if:
(aa) they undertake a certain action that could lead into the ‘piercing of the corporate veil’; or
(bb) they are acting as a personal guarantor by virtue of a personal guarantee agreement.
Board of Directors (“BOD”)
In general, members of the BOD are not personally liable for any liability of the PT, except for:
(aa) any loss suffered by the company if he/she acts negligently or fails to perform his/her duties
in good faith and with full responsibility; and
(bb) the insufficiency of the PT’s assets to cover the liabilities incurred during the PT’s bankruptcy
process, caused by the BOD.
Board of Commissioners (“BOC”)
Every member of the BOC will be held personally liable for every loss suffered by the PT if he/she acts
negligently or fails to perform his/her duties in good faith, prudently, and responsibly. In the event that there is
more than one commissioner in the BOC, then the abovementioned liability shall apply jointly to all members
of the BOC.
![Page 75: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/75.jpg)
75 ASEAN Social Enterprise Structuring Guide
e. Tax Treatment
In general, there is no specific tax treatment to a PT, except for a PT which is registered in BKPM as a domestic
or foreign investment company that may apply for an import facility from the government. The granting of such
import facility is dependent on the PT fulfilling specific requirements and the discretion of the government.
f. Ongoing Governance and Regulatory Obligations
The annual General Meeting of Shareholders (“GMS”) may only distribute dividends and allocate parts of the
profit for social purposes if the following conditions have been fulfilled:
A. The PT has a positive net balance in the relevant financial year. Positive net balance means
that the PT’s net profit in the relevant financial year is sufficient to cover any of the company’s
accumulated losses from the previous financial years. Net profit means the PT’s revenue in one
financial year minus taxes.
B. The annual GMS has set aside a specific amount of the net profit for the company’s reserve
funds. Part of the net profit may be set aside for reserve funds until they reach at least 20% of
the PT’s issued and paid-up capital.
A PT’s profits may be used for social purposes through the following means:
A. Company Social Responsibility (“CSR”) program
A PT may use its profits for social purposes through its CSR program, with the amount to be spent on the CSR
program determined by the GMS. The advantages of using a CSR program are, amongst others: (i) expenses
spent for the CSR program shall be considered as operational expenses of the PT; and, (ii) Indonesian laws
does not specifically set a maximum amount of expenses that a PT can spend on its CSR program.
A. Shareholders’ discretion on dividend
A shareholder may utilise all or part of their dividend to finance social activities outside the company. To
streamline the process, a shareholder may issue a power of attorney or instruction to the PT to directly transfer
it to another account for the purpose of social activities.
g. Structure of the Internal Organisations
A PT must have a GMS, BOD and BOC.
GMS
GMS is the organisation of a company that holds certain powers that are not given to the BOD or BOC, as
determined by Law No. 40 of 2007 regarding Limited Liability Companies (the “Company Law”) and/or the
Company’s AOA. These include:
(aa) approving the company’s annual report and the use of the PT’s profit;
(bb) ratifying the annual report of the BOD regarding the management of PT;
(cc) approving the transfer or encumbrance of more than 50% of the total assets of the company;
(dd) approving the merger, acquisition, demerger, consolidation, liquidation and dissolution of the
company;
![Page 76: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/76.jpg)
76 ASEAN Social Enterprise Structuring Guide
(ee) approving amendments to the PT’s AOA;
(ff) approving the appointment or dismissal of the members of BOD and BOC;
(gg) approving the change of the PT’s status from a private company into a public company and
changes to the shareholders composition;
(hh) setting out the PT’s general management and operational policies; and
(ii) other powers that may be provided in the AOA.
The GMS is convened by the BOD. One or more shareholders who jointly represent at least 1/10 (one tenth) or
more of the total number of shares with voting rights may request that the company convene a GMS.
BOD
The BOD is responsible for the management of a company in accordance with its purposes and objectives.
Members of the BOD are authorized to represent the company, including in court, pursuant to the provisions
in the AOA.
BOC
The BOC is mainly responsible for supervising the management and operation of the company, as undertaken
by the BOD, and for providing advice to the BOD. The BOC is responsible for its supervision duties to the GMS.
The PT’s AOA may require the BOD to obtain the BOC’s consent before entering into any transaction or taking
any action on behalf of the PT.
h. Finance and Fundraising
Financing and funding a company can be done in various ways, including but not limited to, capital increase,
obtainment of loans from any financial institutions and issuance of securities. A PT is not allowed to collect
donation from the public.
![Page 77: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/77.jpg)
77 ASEAN Social Enterprise Structuring Guide
SUMMARYWe provide the following table as comparison for the existing entity structures available for the SE:
Sole Proprietorship Partnership Firm CV Foundation Association Cooperative PT
An entity established by one entrepreneur who has sufficient capital to undertake a business activity.
An entity where two or more individuals pool their resources and share profit and loss in accordance with a partnership agreement.
A special form of partnership established to operate and gain profit using a shared name.
An entity established by: (a) an individual or several individuals who are responsible for the company and all its debts, with its own assets; and (b) an individual or several individuals who only provide contributions, financial or otherwise.
A legal entity to carry out specific social, religious, or humanitarian activities.
A legal entity consisting of individuals, established to pursue certain social, religious and humanitarian objectives, which does not distribute profit to its members or founders.
An autonomous association of individuals who voluntarily choose to unite their economic, social and cultural needs and aspirations through a jointly-owned and democratically-controlled enterprise.
A commercial business entity whose main goal is to make profit. The most common type of company in Indonesia.
Vary – as long as the business line may legally be conducted by a sole proprietorship.
Vary – as long as the business line may legally be conducted by a partnership.
Vary – as long as the business line may legally be conducted by a firm.
Vary – as long as the business line may legally be conducted by CV.
No business activities.
No business activities.
Vary – as long as may legally be conducted by a cooperative and is based on the economic needs of its members.
Vary – as long as the business line may legally be conducted by a PT.
The personal assets of the owner and business revenue.
Contributions from all partners and business revenue.
Contributions from all partners and business revenue.
Contributions from all partners and business revenue.
Contributions from all founders, donations, benefaction assets and other sources that are not contrary to the foundation’s AOA or the law.
Contributions from all founders, donations, members’ deposits, grants, grants under a will and/or other sources that are not contrary to the foundation’s AOA or the law.
Membership deposits, debt capital or capital participation from members.
Share capital held by the shareholders.
At the discretion of the owner.
At the discretion of each partner.
At the discretion of each partner.
At the discretion of each partner.
Yes. The utilisation of the foundation income is solely for the social purpose set out in the AOA.
Yes. The utilisation of the association income is solely for the social purpose set out in the AOA.
The social aspect of the cooperative is that its business operations are intended to support the small-scale businesses of its members and the local communities.
In order to use profit for social purposes, a PT can undertake CSR programs or, at its shareholders discretion, the PT’s net profit may be used to finance social activities.
Ove
rvie
wB
usin
ess
Act
ivit
esSo
urce
s of
Cap
ital
Soci
al A
vtiv
ites
![Page 78: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/78.jpg)
78 ASEAN Social Enterprise Structuring Guide
Sole Proprietorship Partnership Firm
Limited partnership (“CV”)
Foundation Association Cooperative
Limited Liability Company (“PT”)
Unlimited. Unlimited. Unlimited. Active partners: unlimited.
Silent partners: limited.
Limited. Limited. Limited. Limited.
Subject to the applicable tax in Indonesia. However, the profit received by the members is not subject to VAT.
Tax exempt. Subject to the applicable tax in Indonesia. No special tax treatment.
a. Capital injected by its owner
b. Business revenue
c. Loan facility from any financial institution
a. Capital contributions of all partners
b. Business revenue
c. Loan facility from any financial institution
a. Capital contributions of all partners
b. Business revenue
c. Loan facility from any financial institution
a. Capital contributions of all partners
b. Business revenue
c. Loan facility from any financial institution
a. Contributions from all founders
b. Donations
c. benefaction assets
d. Other sources that are not contrary to the foundation’s AOA or the law
a. Contributions from all founders
b. Donations
c. Benefaction assets
d. Other sources that are not contrary to the association’s AOA or the law.
a. Membership deposits
b. Debt capital
c. Capital participation from members.
Various methods, including but not limited to capital increase, loans from any financial institution, and issuance of securities.
Prohibited from collecting donations from the public. May collect donations from the public after it obtains a permit from the relevant authorities (excluding foundations established by foreign entities).
Prohibited from collecting donations from the public.
Liab
ility
Tax
Trea
tmen
tFi
nanc
ing
Fund
rais
ing
![Page 79: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/79.jpg)
79 ASEAN Social Enterprise Structuring Guide
RECOMMENDATION In conclusion, social entrepreneurs who wish to establish a SE in Indonesia must consider whether the SE will
carry out social activities and business activities under one entity or two different entities (hybrid arrangement).
The benefit of conducting both social and business activities under one entity is that the social activities can
obtain funds directly from the operational funds of the SE whenever it is deemed necessary to do so by the
SE’s management. The funds that are accommodated for the social activities will be considered part of the
company’s operational expenses and this will be excluded from its taxable revenue. However, the disadvantage
of this arrangement is that the existence of this entity will depend on the performance of the business activity.
If the business activity collapses, and such collapse results in the liquidation or dissolution of the SE, then
social activities conducted by the SE will also cease. Moreover, the SE’s assets will also be available to be
pledged as security for the SE’s financial liabilities. Social entrepreneurs who have decided to establish one
entity can establish the SE in the form of sole proprietorship, partnership, firm, CV, cooperative and PT.
The risks mentioned above could be minimized by using the hybrid arrangement, where the social entity
is separated from the business/profit-oriented entity. In Indonesia, the hybrid theory may be implemented
by establishing a foundation or an association, which will carry out the social activities, while the business
activities are conducted by a PT. Under this arrangement, the foundation/association will own the PT jointly
with the other founder(s). Some advantages of the hybrid scenario include:
• since the foundation/association and the PT are separate entities before the law, the foundation/
association will not be responsible for any liability of the PT;
• the foundation/ association’s assets cannot be used as securities for the fulfilment of the financial
liabilities of the PT, except for its capital contribution to the PT;
• if the PT is liquidated/dissolved, it will not affect the existence of the foundation/Association and the
foundation/association can continue its social activities; and
• the foundation/association does not need to bear all of the costs (including the capital contribution) for
the establishment/management of the PT since the PT will be established jointly with other investors.
However, there is a disadvantage to this hybrid arrangement relating to the flow of funds from the PT to the
shareholders, including the foundation/association. As elaborated above, a PT may only distribute dividends
to its shareholders in a financial year if the PT has a positive net profit in that year, and the PT has allocated
part of the profits as the PT’s reserve funds. Since a PT may only distribute dividend to its shareholders after
the completion of a financial year, the foundation/association will only obtain funds from the PT once in a year.
The BOD of the PT could distribute interim dividends to the foundation/association and the other shareholders
before the completion of its financial year, with the risk that the foundation/association would be required to
refund that interim dividend to the PT if, at the following annual GMS, the PT declared that the company has
suffered financial losses during the financial year.
Further, the hybrid arrangement requires more initial costs in the as there will be two entities to establish. The
hybrid arrangement may also require more employees and other resources for the management, operation and
supervision of both entities, as Indonesian law prohibits both entities being managed by the same individuals.
![Page 80: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/80.jpg)
80 ASEAN Social Enterprise Structuring Guide
CASE STUDIESTRANSFORMING TO A CORPORATION: THE CASE OF PT SOBI
PT Sosial Bisnis Indonesia (SOBI) was established in 2016 by Telapak with the mission of using a business
minded approach and the power of the market to solve social and environmental issues based on two principals:
shared-ownership and sustainable management of resources. The main business model of PT SOBI focuses on
enhancing the capacity of smallholder-owned forests that are managed to strict sustainability standards. PT SOBI
will act as a trading arm and manufacturer of wood-related products sourced from the smallholders. PT SOBI
will also oversee the implementation of best-practices in forest management, group-certify the forest under its
management, professionally manage the wood-related business, and consolidate the marketing effort of wood-
related products, allowing the smallholder forest owners to earn a better living which then also impacts their
families and communities.
To ensure the optimal implementation of PT SOBI’s goals as both a social enterprise organised as a limited
company, PT SOBI has a unique ownership structure that allows for collaboration between private investors and
non-profit organizations. It combines commercial funding from the private sector and grants from the non-profit
sector which can then be converted into cooperative ownership under SOBI management. As a result, PT SOBI
expects to realize a sustainable impact as well as a balance between profit-making and realising its social mission.
PT SOBI raises 40% of its required capital from private investors and 40% from NGOs or government funding
which is then converted into cooperative ownership. The corporation status also enables PT SOBI to effectively
carry out its role as trading arm and manufacturer with specific required licenses. The founder of PT SOBI envisions
that its structure can create a new ideal model of corporation that is able to balance the business need of creating
profit to fuel future growth with the social goal of developing a fair wealth distribution in society.
THE UMBRELLA APPROACH: THE CASE OF YAYASAN CINTA ANAK BANGSA
YCAB is an Indonesian entity focused on youth development, which carries out holistic programs in which
education and access to finance converge to enable sustainable economic independence. Initially established
as a foundation, YCAB found it quite difficult to obtain sustainable revenue. They therefore evolved into a
social enterprise hybrid structure, utilising a group of organisations to generate additional funding to cover
administration expenses and operational costs, on top of the corporate partnership funding and public donations
used for majority of its programs.
Their hybrid social enterprise structure consists of several business units such as (i) PT YADA Indonesia—a limited
liability company (PT) which profits from its business selling animal rides for kids; (ii) Terrazone—a PT which
establishes and operates game centers in malls and department stores in Indonesia; (iii) Koperasi YCAB or
YCAB Cooperative which runs the education linked micro-loans operation focusing on underprivileged women
entrepreneurs; (iv) Beauty Inc—a limited liability company focusing on health and beauty treatments; and, (v)
FLIP—Human Resource consultant with a unique approach, emphasizing training and development by enabling
organizations’ sustainability and independence through academic learning and cultural and psychological
understanding. Currently there are more than 655 staff members supporting the YCAB Social Enterprise Group.
![Page 81: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/81.jpg)
81 ASEAN Social Enterprise Structuring Guide
ALL IN THE FOUNDATION: DOMPET DHUAFA
Yayasan Dompet Dhuafa (DD) was established in 1994 as a charitable foundation focusing on economy, health,
education and disaster relief. Since then, DD have evolved into a hybrid legal entity structure—in 2001, DD
was legalized as National Zakat Management institution (Lembaga Amil Zakat Nasional) by the Department
of Religion.
In 2016, DD established its social enterprise arm under Dompet Dhuafa Social Enterprise (DDSE) to answer
the growing needs for DD to work directly with corporation partners and operate as a business – for example
by providing hospital and health services, tourism and even construction. Through DDSE, DD can continue
to serve its partners through professionally run business unit while providing more stable revenue stream to
support operational needs for its Foundation charity programs. Until 2017, DDSE remains as a structure under
DD Foundation – resulting to a growth amounting to IDR 97 billion at the end of 2016. Only by mid-2017,
DDSE was separated from DD into an independent limited liability company. The profit and dividend gained
from DDSE operation will be fully utilized to support programs on basic needs of below poverty community
after being deducted with operational cost for the organization.
EXPANDING ITS OUTREACH: THE CASE OF AMARTHA
PT Amartha Mikro Fintek (Amartha) has operated since 2010 as an online platform peer to peer (P2P) lending
service for unbanked communities, connecting micro and small entrepreneurs with average capital needs
of approximately IDR 3 million, with individual investors looking for attractive investment alternatives which
provide a social impact. Amartha guarantee transparency and manage credit risk through a credit scoring
system indicating on-time repayment and a success rate of return of each of its borrowers, and a joint liability
(tanggung renteng) method.
Activities conducted by Amartha are regulated and overseen by the government under the financial technology
industry regulatory framework; specifically POJK Number 77 concerning Implementation of Loans and Borrowing
System with Information Technology Applications. Amartha was established in 2010 as a cooperative (Koperasi)
micro finance institution. During its initial phase, Amartha’s group lending operations were limited to the Bogor
area, with members who were mostly mothers and other women. Amartha continued its operations for the next
five years using this business model and managed to maintain a default rate of 0%. Following the growth of
innovation and technology in financial sector, including for micro and small business, Amartha established PT
Amartha Mikro Fintek to allow a larger outreach to investors and enable group lending all across Indonesia. The
PT structure also allows Amartha to better explore technology-based risk management which increases the
trust level for the platform. To date, Amartha have disbursed IDR 181.34 Billion, and empowered 62,953 micro
entrepreneurs with a 99.61% on-time repayment rate.
![Page 82: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/82.jpg)
82 ASEAN Social Enterprise Structuring Guide
QUESTION AND ANSWER Is it possible to transform a charity/Non-Government Organization (“NGO”) registered in Indonesia to
become a SE model?
Answer: Yes, it is possible. However, the process does not involve a simple from NGO to SE. Rather, it will
involve the establishment of a new SE and dissolution of the charity/NGO pursuant to the prevailing
laws. The establishment and the dissolution are two separate processes.
In the above scenario, it is recommended that the establishment of the SE be processed prior to the
dissolution of the NGO in order to allow such SE to receive the transfer of assets from the NGO prior
to being dissolved. In this process, the NGO’s management must ensure that, after the transfer of
assets to the new entity, the NGO still has sufficient funds to settle all of its outstanding payment
obligations and to cover all costs related to its dissolution process.
Using existing legal entity scheme, how do you ensure that SE characteristic is adhere to? What
instrument can you use?
Answer: The entity may ensure the implementation of SE’s values within its organization through the
following means:
(vii) adjusting its AOA to set out provisions relevant to the SE purpose. However, in adjusting the
AOA, we recommend that the founders consult with the notary or legal advisor to ensure that
the SE specific provisions do not violate any prevailing laws;
(viii) inserting provisions in the AOA regarding the utilisation of net profit, such as of the amount of
net profit that will be reserved for social activities and the amount of net profit that could be
distributed as dividend to the shareholders/founders/members; and
(ix) points (1) and (2) above may also regulated under an agreement between shareholders/
founders/members (e.g., a shareholders agreement).
What types of legal entity have more opportunities in participating on government tender/program?
Answer: The types of entity that could participate in government tender will depend on (i) specific regulations
applicable to tender, as applied by each governmental institution responsible for such tender
and (ii) the type of work/goods/services that are requested by the government institution. PTs,
partnerships, firms and CVs are commonly seen participating in government tenders.
Any restriction of revenue stream to be obtained by foundation and/or any other legal entity?
Answer: There are no specific regulations that restrict the revenue stream of a foundation and/or any other
legal entity, provided that such revenue stream does not contravene their respective AOAs and the
prevailing laws.
![Page 83: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/83.jpg)
83 ASEAN Social Enterprise Structuring Guide
Any restriction of salary provision for legal entities (i.e., foundation, association, Company, etc.)?
Answer: For a foundation, the members of the BOA and BOS are prohibited to receive salaries from the
foundation. In a PT, the members of its BOD and BOC may or may not receive salaries, depending
on the decision of the GMS. There are no specific regulations that prohibit a sole proprietorship,
partnership, firm, CV, cooperative and association in paying salaries to the members of their
respective management or supervisory boards.
Can a foundation own a business entity? If yes, what is the requirement/limitation to the foundation in
owning a business entity?
Answer: Yes, a foundation may invest/participate in one or more business entities provided that the value of
such investment/participation does not exceed 25% of the foundation’s total asset value.
Any risk associated for the foundation to have assets registered under its business entity?
Answer: Even if a foundation establishes/owns shares in a business entity, such business entity will be
considered as a separate entity. Therefore, all risks related to the assets of the business entities
would not be associated with the foundation. This includes assets given by the foundation to the
business entity as an in-kind contribution.
Any separate legal requirements for fundraising and/or crowdfunding activities to obtain additional
assets and/or support its operation?
Answer: Pursuant to Law 9/1961, fundraising activities may be conducted only by a mass organization/
association after obtaining a permit from the following authorities:
(x) the Ministry of Social Affairs, for any fundraising activities that are conducted nationally or in
more than 1 province, or if the fundraising is intended for offshore social activities; or
(xi) the governor, for any fundraising activities conducted only within 1 province; or
(xii) the Regent, for any fundraising activities conducted only within 1 regency.
Please note that the authorities may only grant the above permit if the applicant could prove that
such fundraising will be used for the development of social welfare, mental/religion/spiritual or
culture.
Currently, there is no specific regulation on crowdfunding. The Indonesian Financial Service Agency
(Otoritas Jasa Keuangan or “OJK”) is currently working on the draft regulation on crowdfunding.
![Page 84: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/84.jpg)
REUTERS/JORGE SILVA
84
Lao People’s Democratic Republic
![Page 85: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/85.jpg)
85 ASEAN Social Enterprise Structuring Guide
INTRODUCTIONThe Lao regulatory framework does not specifically address the feasibility of establishing a social
enterprise, with the framework being simple and not yet sophisticated enough to officially allow any
overlap of business activities and social mission under a single legal entity. However, Lao PDR has
nothing to gain from strictly prohibiting such a development, which could pave the way for the social
enterprise business in Lao PDR.
Indeed, the country experiences a lack of human resources, and poverty alleviation and human
development remain the foremost objectives of the government of Lao People’s Democratic Republic
(Lao PDR). As such, social enterprises can help fill the void that currently exists in Lao PDR, reducing the
burden on the government by offering incentives to companies that are willing to help alleviate poverty
in remote areas by running a sustainable business within the country and sharing their prosperity and
the fruits of their success with Lao nationals.
Although some companies and non-profit organizations operating in Lao PDR label themselves as
social enterprises, there is currently no legal definition of a social enterprise in Lao PDR, and authorities
are not aware of or fully familiar with this concept. There is no special regulatory framework for these
entities, and social entrepreneurs must work to fit their ventures into the existing regulatory framework
to accommodate their business objectives and social mission.
Although it is not easy, the Lao regulatory framework does provide some flexibility to fit the
concept of a social enterprise and localize it from a Lao perspective. Various entities currently
market themselves as social enterprises to promote their activities. These range from non-profit
organizations to limited companies.
Types of investment and types of legal structures in Lao PDR are governed by the Law on Investment
Promotion 2009 and the Law on Enterprises 2013, respectively. The Law on Investment Promotion
sets out three types of investment in Lao PDR for business purposes:
1. Wholly foreign-owned or local investment;
2. Joint-venture investment, which involves the establishment/operation of a joint-
venture business/entity between domestic and/or foreign investors; and
3. Business contracts by cooperation.
The Law on Enterprise makes the following legal structures available for the purpose of operating
a business in Lao PDR:
• Representative office
• Branch
• Partnership
Lao People’s Democratic Republic
![Page 86: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/86.jpg)
86 ASEAN Social Enterprise Structuring Guide
• Limited company
• Sole limited company
• Public company
• State-owned company
Few of the structures above are a 100 percent match for social enterprises.
Partnerships are rarely used in Lao PDR, and thus, there are few precedents available. The legal framework
for setting up social enterprises in the form of partnerships may not prove to be as solid as those in place for
limited companies.
A representative office is usually established primarily for market survey purposes, in order to collect information
to consider further investments in Lao PDR in the near future, as stated under the Law on Investment.
Branch licenses are usually granted to certain types of businesses1 such as: (1) airlines; (2) banks; (3) insurance
companies; or (4) international consulting firms. Therefore, this structure may not be a viable option for a legal
entity to run what would be seen as a social enterprise.
Among all of the mentioned legal structures, the limited company and sole limited company structures may
be the most suitable for carrying out a social enterprise activity in Lao PDR. In fact, these two structures are
the only types of business structures that have been chosen and used for the purpose of operating social
enterprises in Lao PDR.
Aside from legal structures that are typically used for business purposes, non-profit organizations are also
key players fueling the growth of social enterprises within the country. Indeed, many international non-
governmental organizations (INGO) and non-profit associations (NPA) claim to be operating under a social
enterprise concept.
There is another structure that is not yet popular in Lao PDR but may develop into an option to form a social
enterprise. Lao PDR is encouraging public and private sector cooperation to collectively develop and build
labor skills development centers.2 Basically, this is a vocational center that is set up to provide training for
people who have livelihood difficulties, or are searching for a professional vocation, in order to fill the market
with skilled labor, as Lao PDR is suffering from a shortage of skilled workers. Although some of these centers
have been operating for quite some time now, there is no proper law/decree formalizing their existence. This
type of entity will also be further discussed below.
In the next section, we will explore the various legal forms available to social enterprises in Lao PDR, and the
implications associated with each structure. The legal structures for social enterprises in Lao PDR include:
• Private limited company
• NPA / INGO
• Labor skills development center
1. Instructions on the Establishment of Business Branches in Lao P.D.R. No. 1641 dated September, 20142. Article 4 Law on Labor 2013
![Page 87: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/87.jpg)
87 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 1 – PRIVATE LIMITED COMPANY / SOLE LIMITED COMPANYa. Overview
A private limited company is the most common form of company in Lao PDR. The principles of this structure
in Lao PDR do not differ very much from other jurisdictions. Save for very few provisions, private limited
companies and sole limited companies are governed in the same manner by the Law on Enterprises.
Shareholders in a private limited company can be either individuals or legal entities. The Law on Enterprises
sets out a list of rights to protect the rights and interests of shareholders.3 Among other rights, shareholders
can obtain and examine the records of the company, receive dividends from their shareholding in the company,
file a complaint against the directors or any employee of the limited company if their interests are prejudiced,
etc. Dividends in a private limited company are distributed upon approval from a shareholders’ meeting.
However, if the limited company sustains accumulated losses from the previous year, it may not distribute
dividends. Whenever the company wishes to raise its capital, shares can be issued to private investors. This
raising of funds cannot be made from the general public, which is in contrast to public-listed companies.
The articles of association (AOA) set out the internal organization/structure of the company. The AOA must
include the following elements:
• Name of the company
• Business purpose
• Name and the location of the headquarters
• Capital, value and number of shares, the proportion contributed in kind/cash, and the number of
common/preferred shares
• Names and contact details of the founders of the company
• Provisions referring to the liability of the director
The Ministry of Industry and Commerce (MOIC) provides a template of the AOA, in Lao language only,
which can be modified. The investors can utilize the template to form a limited company, or add/implement
additional details/chapters at a later date as needed.
Along with registered capital, there is a statutory reserve fund to which the company must contribute.4 The
statutory reserve fund secures against risks, wherein the limited company must convert 10 percent of its net
profit into the reserve fund each year after deducting accumulated losses. When the reserve fund reaches half
of the registered capital of the limited company, the limited company may suspend contribution of such funds,
except if stated otherwise in the company’s articles of association.
Although efforts have been made in recent years, several restrictions remain on foreign investors. These
restrictions may differ depending on the activities that are carried out in Lao PDR, and for some of the
activities, the authorities will require a foreign investor to partner with a local investor under a defined share
ratio, which can also differ from one activity to another.
3. Article 104 Law on Enterprises 20134. Article 156 Law on Enterprises 2013
![Page 88: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/88.jpg)
88 ASEAN Social Enterprise Structuring Guide
Nonetheless, the minimum required registered capital for an entity wholly owned by a foreign investor is
USD 125,000.5 The activities to be conducted require approval by the MOIC and will appear on the enterprise
registration certificate of the company. Any modification of these activities will have to be notified/approved
by the MOIC.
b. Advantages & disadvantages
Advantages
√√ Can operate and conduct approved/authorized trading activities at will and collect fees from it without restrictions.
√√ Faster to establish than a non-profit organization, although it may require 3-6 months for a general business company to be established in Lao PDR.
√√ Limited liability for the shareholder(s).
Disadvantages
√: High minimum requirements for foreign investors (e.g., minimum registered capital is USD 125,000, which can increase depending on the contemplated activity).
√: Restrictions on foreign investment.
√: The original purpose of this legal structure is not suitable for social missions.
√: Reporting and tax obligations.
c. Establishment process, documentation & costs
Establishment can differ slightly depending on whether the company’s contemplated activities are considered
to be a general business or a concession-related activity. Concession activities usually involve businesses
where special rights have to be negotiated with the government, and generally concern the following sectors:
(1) mining; (2) energy; (3) exploitation of natural resources; and (4) telecommunications. We will therefore
disregard the concession registration process for a company, as it does not involve the types of activities that
are typically conducted by a social enterprise.
Applications to register a general business are submitted directly to the MOIC, or its provincial or local offices
where the AOA and the business license will be issued. Some activities may require further approval from
different ministries, and the MOIC will liaise with them before issuing the enterprise registration certificate.
5. Article 17 Law on Investment Promotion 2009
![Page 89: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/89.jpg)
89 ASEAN Social Enterprise Structuring Guide
The registration process, required documentation, and official fees are listed in the table below:
Registration of a limited companyOfficial fee
(LAK)Time frame
A person or juristic person who wishes to establish a company in Lao PDR will first need to submit an application, with the following details, to the MOIC:• Application to reserve the name of a limited company • Supporting documents• Specific form to be completed;• By law, a copy of the contract of incorporation is required, but in practice, the officer may not require such a
contract; and• Power of attorney, if any (3 copies).
10,000/set
• Application to register a limited company • Supporting documents• Specific form to be completed;• Contract of incorporation (3 copies);• Articles of association (3 copies);• Minutes on the establishment of a company for sole limited company and if the shareholder is a legal entity
(3 copies);• Power of attorney for the assignee to undertake the registration, if any (3 copies);• For a foreigner, copies of the identification card or passport (3 copies);• Six photos (size 3x4 cm) which have been taken within the past three months;• Office location certificate; and• Curriculum vitae of the investors.
70,000/set
Official fees for issuing an enterprise registration certificate
The official fee depends on the company’s registered capital. None
Less than LAK 1,000,000 20,000
LAK 1,000,001 to 10,000,000 50,000
LAK 10,000,001 to 20,000,000 100,000
LAK 20,000,001 to 50,000,000 300,000
LAK 50,000,001 to 100,000,000 500,000
LAK 100,000,001 to 400,000,000 1,000,000
LAK 400,000,001 to 1,000,000,000 2,000,000
LAK 1,000,000,001 to 10,000,000,000 3,000,000
LAK 10,00,000,001 to 20,000,000,000 5,000,000
More than LAK 20,000,000,000
Certificate of approval from the Bank of Lao PDR to import capital
Once the MOIC has issued the enterprise registration certificate, it is possible to obtain a registered capital certificate from the Bank of Lao PDR (BOL). The BOL will also approve said capital for the legal entity and its business purpose.
Registration for tax identification Official feeTime frame
Once the enterprise registration has been delivered, the company will need to apply for a tax identification registration.
Depends on the registered
capital
30 working days
Company seal Official feeTime frame
After passing the registration process, the applicant must bring the following set of documents issued by the MOIC to the Vientiane Public Security Bureau to apply for a company seal:• Application for a company seal (form will be filled in by the officer)• Supporting documents• Enterprise registration certificate;• Tax identification certificate; and• Letter of transfer from the MOIC.• After receiving the company seal, the applicant is required to seek approval to use the seal from the
Vientiane Public Security Bureau.
500,00010-15
working days
![Page 90: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/90.jpg)
90 ASEAN Social Enterprise Structuring Guide
Company signboard Official feeTime frame
In order to apply for a company signboard, the following documents are required to be submitted to the Ministry of Information Culture and Tourism.• Application for a company signboard• Supporting documents.• Enterprise registration certificate;• Tax identification certificate; and• Photo of the director.
50,00010-15
working days
Remark
Apart from the fee for the application form, there are other official fees such as the measurement fee for the length of the signboard whereby 1 meter will cost LAK 100,000. The approval for the signboard is valid for one year, and it can be renewed. The renewal should be done before the expiry date.
Employment contract registration Official feeTime frame
The procedures for employment contract registration are as follows: Collect the employment contract form from the Ministry of Labor and Social Welfare; Fill in, amend, or add details to the form, without deleting the original; Submit the form, along with the enterprise registration certificate and tax identification certificate, to the Ministry of Labor and Social Welfare for examination.
100,00060 working
days
Social security fund Official feeTime frame
In order to apply for membership in the social security fund, the following documents are required:• Application for social security fund membership • Enterprise registration certificate;• Tax identification certificate; and• Map showing the company location.
Free of charge10 working
days
A business plan is also usually required for the contemplated activities.
d. Liabilities
The company’s shareholders are liable for the investment value of the shares they hold, but they are not liable
for their own personal assets, unless they have previously provided a guarantee of their personal assets for the
benefit of the company. Therefore, the general principle is that shareholder liability remains restricted to their
investment, and they cannot be liable for the company’s debts. The Law on Enterprises further provides that
shareholders are only liable for the company’s debts up to an amount not exceeding the unpaid portion of their
shares.6 As preferred shares are also recognized by the Law on Enterprises, shareholders within the same legal
entity can have different rights.7
A director will be liable for:
• acting outside the scope of the limited company’s business purposes as specified in its articles of
association, or in the contract of incorporation;
• beaching the limited company’s articles of association;
• exercising rights and performing duties beyond the assigned scope of power; and
• failing to exercise assigned rights or perform assigned duties.
In any of the events mentioned above, the limited company remains liable to third parties.
6. Article 3 Law on Enterprises 20137. Article 99 Law on Enterprises 2013
![Page 91: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/91.jpg)
91 ASEAN Social Enterprise Structuring Guide
e. Tax Treatment
The tax system in Lao PDR is not centralized, which can be cumbersome for some limited companies when
they attempt to expand their business and open locations in other provinces. Tax obligations in different
provinces have to be fulfilled with different officers, who may require some companies to provide protracted
explanations to clarify their revenues. Lao law prescribes two types of taxes: direct and indirect.
Direct tax8
Profit tax
Profit tax is collected on the profits of a company, regardless of whether it is a domestic or a foreign entity. The
maximum rate of profit tax is 24 percent for both domestic and foreign legal entities.
Annual profit base (in LAK) Taxable amount (LAK) Rates Tax at each Level (LAK) Total (LAK)
Less than 3,600,000 3,600,000 0 percent 0 0
From 3,600,001 to 8,000,000 4,400,000 5 percent 220,000 220,000
From 8,000,001 to 15,000,000 7,000,000 10 percent 700,000 920,000
From 15,000,001 to 25,000,000 10,000,000 15 percent 1,500,000 2,420,000
From 25,000,001 to 40,000,000 15,000,000 20 percent 3,000,000 5,420,000
More than 40,000,000 ………….. 24 percent …………… ………….
Carried forward annual losses
Lao tax regulations recognize the procedure for carrying forward annual losses. In the event of losses within
a year, such losses can be carried forward to be offset with profits for the following year within a three-year
period, based on certification from the Audit Authority, or an independent audit company recognized by the
Tax Administration. After completing the three-year period, the remaining losses are no longer allowed to be
offset from the profit.
Income tax
Both local and foreign individuals are subject to income tax. Foreigners working in Lao PDR are liable to pay
tax in Lao PDR, unless a specific agreement signed between Lao PDR and the relevant country of origin is
applicable.
The income tax rate in Lao PDR is progressive and includes salaries, wages, extra allowances, overtime work,
position allowances, career allowances, annual bonuses, meeting allowances for members of the board of
a company, and other benefits received in cash or in kind. The progressive rate ranges from 0 percent to 24
percent, as shown below:
Annual profit base (in LAK) Taxable amount (LAK) Rates Tax at each level (LAK) Total (LAK)
Less than 1,000,000 1,000,000 0 percent 0 0
From 1,000,001 to 3,000,000 2,000,000 5 percent 100,000 100,000
From 3,000,001 to 6,000,000 3,000,000 10 percent 300,000 400,000
From 6,000,001 to 12,000,000 6,000,000 12 percent 720,000 1,120,000
From 12,000,001 to 24,000,000 12,000,000 15 percent 1,800,000 2,920,000
From 24,000,001 to 40,000,000 16,000,000 20 percent 3,200,000 6,120,000
More than 40,000,000 -- 24 percent -- --
8. Law on Tax 2015 Chapter IV
![Page 92: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/92.jpg)
92 ASEAN Social Enterprise Structuring Guide
Environmental tax
This direct tax is levied on entities that cause pollution, and more broadly, endanger the environment. There
are no definite rates, and no regulation has set out a mechanism for calculating this tax. Therefore, at present,
this tax will most likely not be applicable to a social enterprise or other types of ventures.
Stamp duty
There is no fixed rate for stamp duty. Document registration is governed under a special decree, and the rates
differ depending on the type of document.
Dividends
Dividends paid to individuals or legal entities based abroad are subject to 10 percent withholding tax.
Indirect tax9
Indirect taxes basically comprise value-added tax and excise tax. The former is levied on goods for consumption
and services at the rate of 10 percent, as prescribed under the Value-Added Tax Law. Excise tax is levied on
specific products designated by the Law on Tax, such as alcohol, tobacco, cars, and certain types of food.
Tax incentives
Tax incentives are available for promoted sectors, as described in the Law on Investment Promotion.10
Incentives will depend on the type of activities to be conducted. Agriculture, industry, handicrafts, and services
are designated as promoted sectors. A detailed list of these activities, as well as the level of promotion they
receive, is provided in the Investment Promotion Decree.11
The greatest tax incentives are offered for promoted-sector investments in remote areas which have no economic
infrastructure to facilitate investments (zone 1). Zones with a moderate level of economic infrastructure, and
which are suitable for accommodating investments to some extent, are classified as zone 2, while zones with
good infrastructure for supporting investments are classified as zone 3.
• In zone 1, level 1 investments are entitled to profit tax exemption for ten years; level 2 investments
are entitled to profit tax exemption for six years; and level 3 investments are entitled to profit tax
exemption for four years.
• In zone 2, level 1 investments are entitled to profit tax exemption for six years; level 2 investments
are entitled to profit tax exemption for four years; and level 3 investments are entitled to profit tax
exemption for two years.
• In zone 3, level 1 investments are entitled to profit tax exemption for four years; level 2 investments
are entitled to profit tax exemption for two years; and level 3 investments are entitled to profit tax
exemption for one year.
The zones correspond to the remoteness and difficulty of accessing such areas, which affects the need for
investments to lift people out of poverty. Therefore, the government encourages private investors to establish
businesses in these zones by providing tax incentives. This can be an option for social enterprises interested in
starting their business in areas that are definitely in need of jobs and sustainable income.
9. Law on Tax 2015 Chapter III10. Article 49 Law on Investment Promotion 200911. Article 31 Decree on the Implementation of Law on Investment Promotion April 20, 2011
![Page 93: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/93.jpg)
93 ASEAN Social Enterprise Structuring Guide
f. Ongoing Governance and Regulatory Obligations
As explained above, every type of activity must be approved prior to commencing operation. Restrictions
or prohibitions that are imposed on business operators will mainly depend on the nationality of the owner/
shareholder(s).
Lao PDR also has regulations that reserve specific activities for Lao nationals, and require specific vetting and
scrutinizing for registration applications submitted by foreigners, before they can be approved. As restrictions/
prohibitions remain relatively high for foreigners in Lao PDR, foreign investors need to ensure that they fully
understand the specific requirements for their business before they proceed further.
Companies must provide an annual business report containing the following information:12
• Total capital, registered capital, and number of issued shares that remain unpaid
• Types and number of shares issued and paid up
• Name, location, and type of business undertaken by other companies or subsidiaries in which the
limited company holds shares, and the types and number of shares
• A report in which the director of the company informs the company of its direct or indirect involvement
in transactions of the limited company that could benefit them, or about any increase or reduction of
their shareholding in a limited company, or in the company’s subsidiaries, within the accounting year
• Amount and value of remuneration paid to each director by the limited company
Any other matters set forth in the limited company’s AOA
g. Corporate structure
A limited company must have at least one director. The nationality of the director is not restricted, and he/
she can be either a Lao national or a foreigner. The director may or may not be a shareholder of the limited
company. A company may have several directors,13 in which case the director who is authorized to bind/engage
the company with third parties is called the general director. A board of directors may also be established if
needed. Directors of a limited company are elected for a period of two years.
Limited companies are composed of at least two shareholders and up to 30 shareholders.
A sole limited company, as its name implies, is composed of a single shareholder, which may be a legal entity
or an individual who may or may not be the director of the company. A general shareholders’ meeting has to
be summoned at least once per year. In the case of the arrival of a new shareholder within the shareholding
structure of the company, existing shareholders have preemptive rights by law.
h. Governance
There are no rules or specific regulations on a company’s governance that would restrict people of different
nationalities from becoming a member of the board. The composition of the board can, however, be defined
within the company’s AOA.
12. Article 162 Law on Enterprises 2013
![Page 94: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/94.jpg)
94 ASEAN Social Enterprise Structuring Guide
i. Finance & fundraising
Companies in Lao PDR are often family businesses, and the laws provide the possibility of relying on personal
savings, or receiving funds from a circle of relatives. A limited company can raise capital by increasing the initial
shares of the company. Private donations may be authorized, but not on a large scale and cannot represent a
substantive income of the company.
Third parties may enter into the capital of a limited company, but it should be noted that private limited
companies in Lao PDR cannot offer shares to the public, advertise share sales, or issue debt to the public.
Authorities are very cautious about this matter, which has become a much-discussed issue in Lao PDR as
many local companies have sold debt to people before winding-up the company with the funds they have
accumulated.
A company can seek funds through a loan with a commercial bank. As such, a personal guarantee from a
shareholder/director can be granted over a personal asset. Accordingly, the limited liability of the guarantor
will be extended to cover the personal security interest granted to the commercial bank.
j. Case study - Ma Té Sai
Ma Té Sai was founded as a limited company by Emi Weir and Cleménce Pabion in 2010. Ma Té Sai is wholly-
owned by foreign shareholders and has operated primarily in Luang Prabang for almost seven years. The
company describes its primary objective as conducting business to spread and promote special handicrafts
made by villages throughout Lao PDR. As such, the company operates and buys textile goods from villages
and sells them mainly to tourists and hotels seeking authentic Laotian goods.
Although Ma Té Sai operates as a normal business, it does have a real social aspect to it. Ma Té Sai invests
in the people in its supply chain by teaching women how to sew and weave, establishing agreements with
village chiefs for certain quality goods, and buying goods produced by each village. In doing so, Ma Té Sai has
increased the general income in many villages and elevated the quality standards of Lao textiles.
Ma Té Sai provides machines and training for women to use in producing textiles and does not prohibit them
from using the tools to sell to other clients, although there is prior agreement to protect the company’s
intellectual property rights by refraining from using the company’s designs in works for other clients.
Ma Té Sai’s staff and suppliers are Lao people, many of whom have worked with the company for many years.
The company also partners with institutions to help women who were the victims of human trafficking by
providing them with livelihood skills.
As part of their overall strategy, the company aims to boost the Lao tourism market and increase demand for
handicrafts, which will sustainably increase villagers’ income and preserve Lao culture.
For more information, please visit www.matesai.com/
13. Article 125 Law on Enterprises 2013
![Page 95: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/95.jpg)
95 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 2 – NON-PROFIT ASSOCIATION (NPA) / INTERNATIONAL NON-GOVERNMENTAL ORGANIZATION (INGO)a. Overview
In Lao PDR, NPAs and INGOs do not fall under the same regulations. NPAs are governed by the Decree on
Associations, dated April 29, 2009 (Decree on NPAs), and the Recommendations on the Implementation of
the Decree on Associations, dated December 8, 2009 (NPA Recommendations), and are reserved for Lao
nationals. In contrast, INGOs are regulated by the Decree on INGOs, dated January 8, 2010 (Decree on INGOs),
and the Guidelines for the Implementation of the Decree on INGOs, dated February 17, 2015 (INGO Guidelines).
NPA
Until 2009, only civil society institutions were permitted by the local government. These represented
mass organizations attached to the administration. The Decree on NPAs sets out the legal framework and
requirements for the establishment and operation of Lao NPAs, which are regulated by the Ministry of Home
Affairs. To date, the NPA remains the most common vehicle for social activities in the voluntary sector. The
Decree on NPAs was shortly followed by the NPA Recommendations, which provided further details and
clarifications.
According to the Decree on NPAs, a NPA is an organization that is mandated to build solidarity and mutual
assistance between members and extend assistance to society. It also protects the legitimate rights and
interests of the association, its members, or the community, and participates in national construction and
development, and poverty eradication.14
The Decree on NPAs expressly provides NPAs with the right to advertise their activities within the country,
enabling them to become well known among a wide range of potential donors. Likewise, the Decree recognizes
the rights for NPAs to carry out economic activities.15 Depending on the activity the NPA intends to carry out,
a relevant ministry will be responsible for approving the NPA’s license. If economic activities are to be carried
out, the profits derived from these activities must be reinvested in the NPA to allow it to pursue its objectives,
as defined in its charter.
Depending on their size, NPAs will depend on regulatory authorities at different levels: national, provincial,
or district/municipality. The process for registering an NPA is still relatively slow and complex and authorities
currently do not easily grant a full license for NPAs. However, their appearance in the Lao legal framework
marks a turnaround in the Lao government’s attitude towards social enterprises.
INGO
The process for establishing an INGO often takes longer than setting up an NPA. As an INGO is considered
to be a foreign non-profit-seeking legal entity, there is more scrutiny from authorities on the foreign activities
that the INGO seeks to conduct in Lao PDR, and thus more obligations need to be fulfilled.
The Decree on INGOs states that an INGO’s objectives are to contribute to the development of the country,
assist and provide humanitarian aid, and reduce poverty in Lao PDR.16 The competent authority that regulates
INGOs is the Department of International Organizations, Ministry of Foreign Affairs.
14. Article 2 Decree on Associations dated April 29, 200915. Article 18 Decree on Associations dated April 29, 200916. Article 2 Decree Decree on INGOs dated January 8, 2010
![Page 96: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/96.jpg)
96 ASEAN Social Enterprise Structuring Guide
b. Advantages & disadvantages
Advantages
√√ Low establishment costs, especially for NPAs
√√ Can raise significant funds through donations
√√ Tax exemptions
Disadvantages
√: Foreigners cannot sit on the board of NPAs
√: Lengthy establishment procedures
√: Uncertainties regarding the registration process for INGOs, and no guarantee that INGOs will ever receive a license to operate in Lao PDR
√: Not suitable for conducting trading/service activities or generating significant revenue from such activities due to possible restriction by authorities
c. Establishment process, documentation & costs
NPA
The establishment of an NPA appears straightforward in the Decree on NPAs. However, the process is
lengthy in practice. Authorities require a founder to initiate the filing of the registration. To meet the eligibility
requirements, the founder must be a Lao citizen and have full mental and physical capacity.
The founder will also need to designate a Mobilization Committee (MC) that meets the following requirements:
• The MC must have at least three members, all appointed by the founder.
• One of the members must have professional experience that is consistent with the activities of the
association.
• A member may be a legal entity or an individual.
The authorities involved in the registration process may differ, depending on the activities to be performed by
the NPA. For instance, should the NPA conduct trading activities, the Ministry/Department of Industry and
Commerce will be the authority responsible for authorizing and providing a trading license.
The process for registering an application for an NPA17 is as follows:
1. Notification of the selection of the MC’s members by the founder to the competent governmental
authority, depending on the level of the NPA.
2. Preparation and submission of an application to the competent authority by the MC.
3. Within 30 days from the receipt of the NPA’s incorporation documentation, the registration
authority will issue a temporary license, which will enable the procedure to proceed further to
determine whether to approve or reject incorporation of the NPA.
17. Article 12 Decree on Associations 2009
![Page 97: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/97.jpg)
97 ASEAN Social Enterprise Structuring Guide
4. Upon receiving a temporary license, the MC prepares and carries out a statutory general
assembly to circulate and present the temporary license, deliberate over the NPA’s charter, elect
the executive and supervision boards, and approve the NPA’s work plan and the resolution of
the statutory assembly.
5. The MC is dissolved by the election of the board.
6. The executive board must submit all the conclusions of the statutory assembly, the approved
draft charter, the approved business plan and resolutions, and the names of the elected
members of the executive and supervision board to the authority in charge of the application
within 30 days of the date of the closing of the assembly.
7. The authority must approve or reject the draft charter within 60 days of receiving all the
documents sent by the executive board.
8. The date of approval by the authority is considered to be the date of the formal and permanent
incorporation of the NPA.
Required documents:18
• Application
• Draft charter in line with the government’s strategies, laws, and regulations, including all required
details
• Professional and educational background, proof of residency, and proof of no criminal record for each
member of the MC
• Detailed list showing future ordinary members
• Lawful title or lease agreement of the association’s office in Lao PDR
The timeframe set out above is prescribed in the Decree on NPAs and should be strictly adhered to. Many of
the NPAs operating in Lao PDR had to wait a long time before finally receiving a temporary license, and had
to wait even longer before receiving a permanent license.
INGO
The process of setting up an INGO as a legal entity begins with seeking an operation permit. The operation
permit enables the representatives of the INGO to apply for a work permit and a visa to conduct all the
activities necessary to complete the establishment of the INGO. Representatives are allowed to consult and
seek advice from authorities, and draft the memorandum of understanding (MOU) with respect to the project.
The application for the operation permit must include the following elements, which have to be sent to the
Ministry of Foreign Affairs (MOFA):19
• Application letter from the headquarters of the INGO
• Certificate of legal status of the INGO in the country of origin (registration certificate)
18. Article 13 Decree on Associations 200919. Article 5 Guidelines for the Implementation of the Decree on INGOs dated February 17, 2015
![Page 98: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/98.jpg)
98 ASEAN Social Enterprise Structuring Guide
• Statutes and financial statements
• Plans for socioeconomic development or poverty reduction in Lao PDR
• Copy of the statutes of the INGO
• Background of the INGO’s activities
Secondly, the INGO must seek approval of the project from the Lao government, who will review it. Project
approval is required to allow the INGO to recruit Lao citizens and foreigners to implement the approved
project, as defined in the MOU, under the supervision of concerned authorities. The INGO must carry out any
procedures necessary to set up the project office and to obtain the INGO’s seal.
Documents required to apply for project approval:20
• Application letter from the INGO’s headquarters addressed to the MOFA to request project
implementation approval
• Proposed MOU, with a detailed development program which is in line with the political landscape of
the country, including budget, organizational scheme, and operations
• Agreement letter from any relevant authorities
• Other relevant documents as deemed necessary
Afterwards, an express request to establish an office in Lao PDR will also be vetted by the authorities, along
with the following requirements:
• Application letter
• Copy of the project approval
• Identification information for the office, and a notarized lease agreement explicitly allowing the use of
the premises as an office
The scope of the activities to be performed by the project office encompasses the INGO’s expected coordination
with government agencies, as well as the management, monitoring, and implementation of the INGO’s
projects.
20. Article 7 Decree on INGO
![Page 99: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/99.jpg)
99 ASEAN Social Enterprise Structuring Guide
Finally, upon receipt of the project approval, the INGO, along with the ministries involved in the registration
process, must prepare a ceremony for the signing of the MOU within 30 days, in order to commence project
operations.
StepsCompetent authority
Timeframe (working
days)
Validity period
Fees (LAK)
Relevant laws
Step 1: Operation permit application
Operation permit
Department of International
Organizations (DIO), MOFA
60One year
(renewable)150,000 per year
A. 5.1 Decree No. 013/PM
A. 4.1 Guidelines No.1064/AE.OI.3
After operation permit
approved, work permit and
visa for foreign representatives
Department of Skills Development
and Employment (Ministry of Labor
and Social Welfare)
• Visa: 7
• Work permit: 30
•Work Permit: One year
(renewable)
•B2 Visa: One year (renewable)
5,300,000 per year
A.14 of Decree on importing
foreign workers
Step 2: Project Approval
Project approval
DIO and all concerned ministries
60 per evaluation
Evaluation every year
A4.4 Guidelines No.1064/AE.OI.3
Implementation Management
Committee (IMC)
MOFA
Step 3
Project office approval
MOFA 14Based on the
project
A.12 Decree No. 013/PM
A. 10 Guidelines No.1064/AE.OI.3
Step 4
Approval to recruit
MOFA
A. 11 Decree No. 013/PM
A. 14 Guidelines No.1064/AE.OI.3
Step 5 MOU signing ceremony
MOFA along with concerned ministries
4 Guidelines No. 1064/AE.OI.3
d. Liabilities
An NPA/INGO is a legal entity which is distinct from its members. As such, the liability of the members of
the NPA is limited, and creditors are not able to reach out to access the members’ personal assets. If the
organization is sued, the liability of members for debts or damage is limited.
e. Tax Treatment
Neither the Decree on NPAs nor the NPA Recommendations provide information about tax treatment, as they
refer only to the Law on Tax, which does not provide specific provisions for NPAs or INGOs. NPAs are required
to pay tax on salaries, i.e., income tax, of the employees they employ. They are not taxed on their activities
or on the donations that they receive. There is no written rule on this, and different NPAs may be liable for
different tax treatments; some NPAs are totally exempt from any kind of tax.
The Decree on INGOs provides exemptions for INGOs with respect to equipment and the tax on the vehicles
to be used while conducting the INGO’s activities. Aside from these exemptions, the tax obligations will be
![Page 100: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/100.jpg)
100 ASEAN Social Enterprise Structuring Guide
stated in the MOU to be signed with the government entities. Therefore, the principle of freedom of contract
will apply here, as there is no written rule about specific tax treatment. Therefore, INGOs may be exempt from
taxes, but only if agreed upon in the MOU.21
f. Ongoing Governance and Regulatory Obligations
An annual report of the NPA’s organization and activities and a financial report must be submitted to relevant
authorities each year.
INGOs are subject to a more exhaustive reporting scheme and must submit a report every three months to
the Local Secretariat on INGOs to report on project implementation progress. In addition, there is a review
meeting every six months between the INGO and the implementing partners, which represent the ministries
that were involved in the registration process of the INGO. Finally, the INGO Guidelines set out an annual,
mid-term, and final project evaluation and assessment, which will involve the participation of the MOFA, along
with relevant ministries.
In contrast to NPAs, INGOs are not expressly authorized to conduct economic activities as neither the Decree
on INGOs nor the INGO Guidelines mention this matter. Therefore, any economic activities that may be
conducted in Lao PDR have to be expressly stipulated within the MOU and approved by the authorities.
g. Corporate structure
The basic structure of an NPA is composed of the following:
1. an executive board with at least a president and a vice-president;
2. a supervision board; and
3. a secretary general.
For INGOs, the Decree on INGOs refers to a requirement to have a project director or a representative. Beyond
this, there are no further obligations.
h. Governance
The Decree on NPAs provides information on the duties of the executive board, the supervision board, and the
secretary general as follows:
• The executive board is elected by the association’s assembly, leads all activities, and decides on the
NPA’s main affairs in the period between two sessions of the general assembly.
• The supervision board is elected by the executive board and assists in monitoring activities carried out
by the NPA to ensure compliance with the NPA’s charter and laws and regulations.
• The secretary general assists the president of the NPA, and he/she is appointed by the executive
board.
The Decree sets out a minimum of 10 members to be able to create an NPA at the local level. However, the
creation of an NPA with fewer members will not be automatically rejected but treated on a case-by-case basis.
21. Article 17.2.3 Decree on INGO January 8, 2010
![Page 101: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/101.jpg)
101 ASEAN Social Enterprise Structuring Guide
Foreigners are not allowed to sit on the executive or supervision board. However, the Decree and its
Recommendations do not preclude foreigners from sitting on other boards or committees that have been
stipulated in the AOA. Therefore, the charter could implement an Advisory Board of experts to bring technical
value to the NPA, and these experts could be foreigners. The difficulty would then be to seek authorization
for visas and work permits for these foreigners, as these documents are not often granted when the request
comes from an NPA.
There are no particular rules relating to the governance of an INGO, as these are prescribed in their MOU and
will be approved or rejected by authorities on a case-by-cases basis.
i. Finance & fundraising
The main sources of funds of an NPA are the membership fees collected from its members, the donations it
may receive from local or foreign individuals or legal entities, and the income generated through economic
activities.
Donations usually represent the largest portion of an NPA’s funds, especially at the outset of operations. This
explains why many self-proclaimed social enterprises operate as an NPA, given that relying on donations
is essential for the sustainability of these entities. Funds and donations can originate from local or foreign
individuals or entities.22 The Decree on NPAs specifically provides for the possibility of receiving funds from a
foreign source.
Members, staff, and executives can also contribute their personal assets or donate to the NPA.
The problems that NPAs usually encounter are related to the long process required to obtain a permanent
license. Indeed, some of the most important donations usually originate from foreign official institutions from
Europe or other locations abroad. Generally, these institutions require a permanent license identification
certificate, and thus NPAs with a temporary license are not eligible to receive such funds, which could have
otherwise greatly helped them conduct their activities and facilitate the implementation of their social project
in Lao PDR.
For INGOs, there are no provisions that expressly allow INGOs to conduct economic activities that would help
raise funds for their contemplated social mission. Indeed, the Decree on INGOs and the INGO Guidelines
only state that INGOs provide “development assistance and humanitarian aid, without any pursuit of profit.”23
However, there is no statement that would preclude an INGO from negotiating, in its MOU, types of activities
that may be used to raise funds or collect fees to support its social mission.24
j. Case study – Fair Trade Lao PDR
Fair Trade Lao PDR has been operating in Lao PDR since 2008 and was established as an NPA. The business
aspect of this social enterprise is in promoting socially and economically sustainable fair trade, specifically
helping farmers grow and sell high-quality local produce to customers.
The social aspect of Fair Trade Laos is in improving living conditions for the poorest people in La by entwining
the country’s economic growth objectives with efforts to improve social and environmental standards. To
22. Article 44 Decree on NPA 29 April, 200923. Article 2 Decree on INGO January 8, 201024. Article 17.2; 17.5 Decree on INGO January 8, 2010
![Page 102: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/102.jpg)
102 ASEAN Social Enterprise Structuring Guide
achieve the social aspect of its social enterprise, Fair Trade Laos serves as a certification body which provides
qualified members with a certificate to show that they abide by minimum corporate social responsibility
standards and are committed towards socially and environmentally responsible business practices.
Fair Trade Lao PDR models its certification standards on international organizations. However, as these
standards are still too high for Lao PDR, they have tried to localize them to the Lao context, in addition to
providing assistance and guidelines for meeting localized and international standards. Fair Trade Lao PDR
also provides consultancy services for their members on product marketing, market surveys, and product
development.
This NPA conducts and organizes events to raise awareness among business operators and the public. They
also work closely with the government to promote better understanding of the necessity of fair trade and good
social and environmental conditions in Lao PDR.
Operating under an NPA structure is a natural solution for Fair Trade Lao PDR, enabling them to conduct
their activities in a financially sustainable environment. Although they collect fees from members for their
consultancy services, fundraising from the public or official institutions remain their main source of income.
For more information, please visit http://www.laosfairtrade.org/
![Page 103: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/103.jpg)
103 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 3 – LABOR SKILLS DEVELOPMENT CENTERa. Overview
This type of structure remains relatively unexplored in Lao PDR, as there are only a few labor skills development
centers to be found in the country. Under this structure, it is possible to operate any activity, provided it
also carries out its objective of training people to upgrade their livelihood skills or teach them new skills. A
reference to labor skills development centers can be found in the Labor Law. The main ministry in charge of
the establishment of these centers is the Ministry of Labor and Social Welfare.
The formation and operation of such centers are expressly provided for under the Labor Law. However, there is no
information about the specific requirements or the establishment process for such a legal entity under the law. To
ascertain the requirements, it is necessary to request information from the Ministry of Labor and Social Welfare.
Nevertheless, the state expressly supports and promotes the creation of such labor skills development centers,
and openly encourages state-owned companies, as well as the private sector, to conduct skill development
activities. The state encourages people, legal entities, and organizations to build skills development centers
and form recruitment service networks, in order to contribute to the development of skills and recruitment
which will help to strengthen and upgrade the Lao workforce, making it more competitive regionally and
internationally. Therefore, the objectives of these centers are to: (1) develop and nurture skilled workers; and
(2) provide the Lao market with skilled workers.
At present, officers from the Ministry of Labor and Social Welfare base rules and regulations for labor skills
development centers on a legal draft that has not been made publicly available, and therefore it is hard
to provide detailed information, although officers freely provide such information upon request from an
interested investor. The operational mode of this legal structure is relatively similar to a limited company. The
registered minimum capital is the same as the capital required for a foreign-owned limited company, which
is USD 125,000. As such, foreigners are entitled to invest in, and assume 100 percent ownership of, this type
of structure. Similar to limited companies, there is no threshold in terms of how much profit a labor skills
development center can make
b. Advantages & disadvantages
Advantages
√√ Authorization to officially operate a business activity along with a social mission;
√√ Eligible for donations from local and foreign donors;
√√ Faster to establish and set up than NPAs/INGOs; and
√√ Limited liability of the shareholders and staff.
Disadvantages
√: Authorization to set up such entity is valid for only three years, after which renewal will be necessary;
√: No particular tax incentives are automatically granted;
√: No clear legal framework and few precedents are to be found—legal uncertainties remain;
√: Difficulty in foreseeing incentives that the company may be eligible for; and
√: The social mission of this structure is imposed and consists of providing training to people.
![Page 104: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/104.jpg)
104 ASEAN Social Enterprise Structuring Guide
c. Establishment process, documentation & costs
The Ministry of Labor and Social Welfare provides, upon formal request, a list of the necessary documents
to file a registration application for the establishment of a labor skills development center. According to the
requirements set out by the ministry, investors who wish to set up such a structure are required to submit the
following information/documents:
• Specific form to be filled in for the establishment of the labor skills development center;
• Curriculum vitae of the applicant;
• Shareholders agreement;
• Certificate or evidence of education in relation to the contemplated center’s activity;
• Copy of the identification card or family book for a Lao citizen, or a passport for a foreigner;
• Certificate of the investor’s financial statements and assets; and
• Photo (size 3x4 cm).
A number of other documents related to the project will also have to be submitted:
• Business plan;
• Safety standards of the building structure of the center;
• Curriculum;
• Plan regarding the needs of employees and instructors;
• Plan regarding the needs of students or trainees;
• Budget plan (charges, expenses, and profit);
• Detailed plan relating to required equipment and materials;
• Detailed plan concerning fees, if any, to be collected from the students/trainees;
• Structure of the center, including detailed organization chart; and
• Details of the executive board of the center, and the following documents of each member: (1) proof
of education; (2) proof of expertise in the contemplated activity; (3) identification or family book for
Lao citizens, or a passport for foreigners. If no board is established, the details of the director may be
submitted.
The license for a labor skills development center is only granted for three years and will need to be renewed if
the center wishes to continue its operation. To date, every renewal request has been approved.
The official timeframe specified by the Ministry of Labor and Social Welfare from the submission of an
applicant’s registration documents until the delivery of the license is two months. However, this timeframe
may not reflect the reality of the actual process, and it would be wise to plan for 3-6 months. In addition,
authorities may also wish to inspect the premises of the training center beforehand.
d. Liabilities
With regard to liabilities, the concept of this legal structure is similar to a private limited company. Every
shareholder remains liable for their portion of the investment. Creditors will not be able to reach out to access
the shareholders’ personal assets. For more details, please refer to the section on limited companies.
![Page 105: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/105.jpg)
105 ASEAN Social Enterprise Structuring Guide
e. Tax Treatment
The tax treatment in general is the same as that of the private limited company. Therefore, please refer to the
section dedicated to private limited companies.
f. Ongoing Governance and Regulatory Obligations
There are no restrictions in terms of activities. The labor skills development center will be treated in a similar
manner to a private limited company. As such, it will incur the same types of restrictions, which will, for
example, depend on the nationality of the investors.
There is a reporting obligation that is specific to this type of legal structure. As these centers are established
to provide the market with skilled labor, monitoring will be carried out by the Ministry of Labor and Social
Welfare to assess the quality of training and employment statistics for the center’s graduates. This type of
training assessment will be made every six months or one year.
g. Corporate structure
This is similar to a private limited company.
h. Governance
This is similar to a private limited company.
i. Finance & fundraising
There is a noticeable advantage for a labor skills development center when compared to a limited company.
The center is entitled to raise funds through donations from the public at large, either from local or foreign
donors, while being able to conduct any business activities.
j. Case study (fictional) - Lao PDR Beautiful Textiles - Labor Skills Development Center
Lao PDR Beautiful Textiles has been established for a certain time by way of a joint venture, and it involves
investors from different sectors and a Lao local partner, who holds minority shares. There is no board, with
only a single foreign director in charge of the daily business of the center. The company’s objectives are to
promote and export Lao textile handicrafts by penetrating markets that have high demand for authentic goods.
Therefore, Beautiful Lao PDR Textiles produces and exports products, monitoring each aspect of its business
until the products enter the market. However, the company also officially supports and aims to enhance the
skills of local people, by providing training for people in difficulties, so they have the opportunity to acquire
unique skills in weaving and tailoring, and earn a livelihood. These people include homeless children, men and
women from rural areas, and other underprivileged groups.
Lao PDR Beautiful Textile raises funds through the sale of their goods internationally, and also through
donations received from both local and foreign donors. They regularly perform and advertise about donation
campaigns. The organization intends to develop itself, improve the machinery used, and employ more
instructors to provide improved teaching and training for local people, all of which also helps respond to the
growing demands for their goods.
By providing opportunities for underprivileged people to acquire skills, Lao PDR Beautiful Textile has
contributed to livelihood improvement for numerous people and their families, in addition to promoting and
encouraging demand for Lao textiles worldwide.
![Page 106: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/106.jpg)
106 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 4 – HYBRID / MULTIPLE STRUCTURESa. Overview
Hybrid or multiple structures are sometimes pursued for two reasons. As stated in this chapter’s introduction,
the overlap between a business activity and a social mission is not yet officially recognized in Lao PDR. Most
established NPAs/INGOs limit their business activities only to their members, as they fear they would otherwise
be deemed a business structure. This restricts the possibility of collecting fees for their goods or services from
many potential clients, and imposes a serious financial constraint when a social enterprise wishes to diversify
its sources of income. Operating through a limited company that is legally permitted to offer goods or services
for sale would alleviate this financial constraint for an NPA/INGO, and would help them gain an alternative
source of income rather than relying only on donations.
Likewise, a limited company that has a social mission may find it difficult to rely solely on business activities
to cover costs and provide revenue for the company, while allocating sufficient funds for its social mission,
especially at the outset of its business. Operating through an NPA/INGO would allow a limited company to
accept donations as an alternative source of income.
This is why some social enterprises have decided to split their structures into two separate legal entities,
enabling them to enjoy the benefits of both a non-profit organization and a limited company. The non-profit
organization raises fund through donations and membership fees from its members, and the limited company
raises funds from its business activities which can later be transferred for the social mission of the non-profit.
b. Case study - Sustainable Agriculture & Environment Development Association (SAEDA) / Lao Organic Promotion in Agriculture Co., Ltd. (LOPA)
These two legal structures are an example of a hybrid/multiple structure working in tandem to fulfill their
business and social objectives.
SAEDA is an NPA, and can therefore pursue its non-profit objectives of improving food safety standards and
developing an environmentally friendly form of agriculture to enable sustainable economic development for
Lao farmers.
Their activities include: (1) spreading sustainable agricultural practices and raising awareness about the
use of appropriate technologies to improve productivity and farmers’ yields, while also taking into account
environmental issues; (2) developing the capacity of farmers and relevant authorities, by teaching them how to
reach out to local, national and international markets, and raising their standards accordingly; (3) developing
a farmer-to-farmer extension approach, in order to transfer good practices in the farming community and
amongst key stakeholders; and (4) developing and increasing the skills of farmers so they use appropriate
tools, as well as enabling them to access relevant information to conduct agriculture in a more sustainable
way.
Although it is the business arm of SAEDA, LOPA adopts a similar vision with its aims to promote more
sustainable economic development for Lao farmers, by introducing agricultural methods that are based on
quality and environmentally friendly products. LOPA’s services include: (1) providing training and workshops
for interested parties; (2) building and advising on the best business model and business plan for local farmers;
(4) anticipating problems that farmers may encounter in their agricultural business; and (5) developing and
helping to market the farmers’ products.
![Page 107: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/107.jpg)
107 ASEAN Social Enterprise Structuring Guide
LOPA’s income is derived from forming partnerships with local and international partners, and from providing
the services described above. LOPA also receives income from the sale of products that are produced as
a result of such sustainable and organic agricultural practices, as well as from sales of non-timber forest
products, and publishing. Eventually, the profits that originate from the business services delivered by LOPA
are partly used to help SAEDA in its social mission
For more information, please visit saedalao.wordpress.com
TRANSITIONING BETWEEN LEGAL FORMSThere is no official legal form for a social enterprise in Lao PDR. Therefore, transitioning between legal
forms is not yet possible. Transition from an NPA/INGO into a business structure may be possible, but
would entail a long process, which would first involve termination of the NPA/INGO before forming a
limited company or labor skills development center. The Lao regulatory framework currently has no
measures that would facilitate such a transition, nor is there a framework to support transitioning from
a company limited to an NGO/NPA.
![Page 108: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/108.jpg)
REUTERS/CHOR SOKUNTHEA
108
malaysia
![Page 109: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/109.jpg)
109 ASEAN Social Enterprise Structuring Guide
INTRODUCTION As one of the most economically developed countries in Southeast Asia, and the second easiest
country in the region in which to do business (according to the World Bank’s 2017 Ease of Doing
Business Index), the spirit of capitalist enterprise holds a very favorable position in Malaysia. In
addition, Malaysia consistently performs well in the CAF World Giving Index and has a strong and
pervasive charitable imperative running through the myriad cultures that make up this global
melting pot of a nation.
It is perhaps no surprise then that social enterprise—with its mix of humanitarian ethics and
capitalist sustainability and adaptability—has been extremely popular since it rose to prominent
in the late 1990s and early 2000s. Their popularity continues to increase, particularly among the
younger generation, and the government are keen to encourage them, offering a range of incentives
and support.
The Malaysian legal system, much like the British legal system with which it shares is roots, is very
amenable to enterprise and allows for a great deal of flexibility in the creation and operation of any
kind of business. However, for better or for worse there are no specific legal structures for social
enterprises in Malaysia, and the legal system, though agreeable to use, can be tricky to navigate for
the uninitiated.
THIS GUIDE THEREFORE SETS OUT THE DIFFERENT LEGAL STRUCTURES FOR ANY FORM OF BUSINESS ENTERPRISE, THEIR PRACTICAL USE FOR SOCIAL ENTERPRISES, AND THE MERITS AND DEMERITS OF EACH.
LEGAL STRUCTURE 1 – LIMITED LIABILITY PARTNERSHIP (“LLP”)a. Overview
LLPs are regulated under the Limited Liability Partnerships Act 2012 (“LLP Act 2012”) which
combines the characteristics of a company and a conventional partnership. The LLP business
structure is designed for all lawful business purposes with a view to making profit. LLPs are often
formed by professionals such as lawyers, chartered accountants and company secretaries for the
purpose of carrying on their professional practice.
b. Advantages & disadvantages
Advantages
malaysia
![Page 110: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/110.jpg)
110 ASEAN Social Enterprise Structuring Guide
√√ Separate legal entity
√√ Limited liability
√√ Cost saving as there is no audit requirement and less statutory compliances
√√ No limit to the number of partners (minimum requirement of two partners)
√√ No minimum capital requirement
√√ Flexibility in terms of its formation, maintenance and termination
√√ Capable of suing and being sued in its own name
Disadvantages
√: Lack of awareness of LLPs which will impact the branding of the business. Most official forms (bank forms, online portals etc.) do not cater for LLPs and are unable to support LLP registration numbers.
√: Lower credit ratings. LLPs are not required to have annual statutory audits and therefore have difficulties in obtaining credit from vendors; especially large corporations.
√: Specific incentives provided to a company do not apply to a LLP.
√: Most of the guidelines issued by government agencies such as business license application, immigration procedures generally focus on private companies.
c. Establishment process, documentation & costs
An application to incorporate an LLP is to be made to the Registrar, and shall include the following particulars:
• name of the LLP;
• nature of business of the LLP;
• registered office of the LLP;
• name and details of every person who is to be a partner of the LLP;
• name and details of compliance officer(s) of the LLP;
• if the LLP is formed for the purposes of carrying on a professional practice, the application shall be
accompanied by an approval letter from the relevant governing body; and
• such other relevant information as may be specified by the Registrar.
An LLP has to be registered online at https://myllp.com.my. A compliance officer of the LLP must be registered
as the user of the MyLLP portal. The registration fee for a new LLP (or conversion to an LLP) is RM500.00.
d. Liabilities
LLPs benefit from limited liability, meaning that the partners are not personally liable for the debts and
obligations of the LLP. An LLP is also capable of suing and being sued in its own name, holding assets in its
own name and other legal actions reserved for legal entities.
e. Tax Treatment
![Page 111: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/111.jpg)
111 ASEAN Social Enterprise Structuring Guide
LLPs are not assessable entities for tax purposes and profits are treated as part of each partner’s personal
income. Accordingly, LLPs do not enjoy the corporate tax benefits which are normally available to limited
liability companies.
The taxation of an LLP with a total capital contribution (whether in cash or in kind) of RM2.5 million or less
at the beginning of the accounting period shall be at the rate of (i) 19% for the first RM 500,000 and (ii) 24%
thereafter.
The above rate does not apply to an LLP if more than:
1. 50% of the capital contribution (whether in cash or in kind) of the LLP is directly or indirectly
contributed by a company;
2. 50% of the paid-up capital in respect of ordinary shares of the company is directly or indirectly
owned by the LLP; or
3. 50% of the capital contribution (whether in cash or in kind) of the LLP and 50% of the paid-up
capital in respect of ordinary shares of the company is directly or indirectly owned by another
company.
Companies under paragraphs (1) and (2) above must have paid-up ordinary share capital of more than RM2.5
million at the beginning of the accounting period.
An LLP with a total capital contribution of more than RM2.5 million shall be taxed at the rate of 24%.
f. Ongoing Governance and Regulatory Obligations
Every LLP must comply with the following requirements of the LLP Act 2012:
1. Registration of changes in particulars
An LLP must notify the Registrar of LLPs of any changes to its registered particulars within
14 days.
2. Annual declaration
An LLP must lodge annual declarations with the Registrar of LLPs, signed by any two of its
partners, stating whether the LLP is able or not able to pay its debts as they become due in
the normal course of business. The declaration shall be accompanied by such other particulars
as may be required by the Registrar, and must be lodged within 90 days of the end of the
financial year.
3. Accounts to be kept
An LLP must keep accounting and other records to sufficiently explain the transactions and
financial position of the LLP and enable profit and loss accounts and prepare balance sheets
from time to time which give a true and fair view of the state of affairs of the LLP at the LLP
registered office, or such other place as the partner thinks fit provided that the Registrar of LLPs
![Page 112: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/112.jpg)
112 ASEAN Social Enterprise Structuring Guide
has been notified. An LLP must also keep its records for a period of at least seven years from
the end of financial year in which the transactions or operations to which those records relate
are completed.
g. Corporate structure
Any two or more legal persons – whether individuals or other legal entities such as incorporated businesses –
may form an LLP under an LLP agreement.
Generally, the LLP agreement governs the mutual rights and duties of both the LLP and its partners except
as otherwise provided by the LLP Act 2012. The second schedule of LLP Act 2012 sets out certain default
provisions for limited liability partnerships, including, amongst others, that no person may be introduced as
a partner without the consent of all existing partners and every partner may take part in the management of
the LLP.
h. Governance
An LLP may carry on business with fewer than two partners for a period not exceeding six months, or a longer
period as may be determined by the Registrar of LLPs, provided that the extended period does not exceed one
year. If a LLP carries on business with fewer than two partners longer than the foregoing period, the person
shall be personally liable, jointly and severally with the LLP for any obligation of the LLP incurred during such
period.
i. Finance & fundraising
Capital contribution by each partners may be provided in the LLP Agreement.
j. Resources
• Limited Liability Partnerships Act 2012
• www.mymagic.my
• http://www.ssm.com.my/en/LLP-AboutLLP
![Page 113: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/113.jpg)
113 ASEAN Social Enterprise Structuring Guide
• https://myllp.com.my
LEGAL STRUCTURE 2 – SOLE PROPRIETORSHIP a. Overview
A Sole Proprietorship (“SP”) is regulated under the Registration of Business Act 1956 (“RBA 1956”). A SP is
the simplest business structure wholly owned by one individual and must be registered with the Registrar of
Business under the RBA 1956.
b. Advantages & disadvantages
Advantages
√√ Simple administration
√√ Full control of all business decisions
√√ Easy to form and dissolve with minimum formalities
√√ All profits will go to the proprietor
√√ Lower compliance requirements
√√ Not required to disclose financial statements to public
Disadvantages
√: Limited source of capital as it is based on the proprietor’s own contribution
√: The owner may be held personally liable for the business’ debts
√: Development of the business is limited to the capability of the proprietor
√: The business will cease operations immediately once the proprietor is deceased
c. Establishment process, documentation & costs
A SP may be registered using a personal name or a trade name. Where the business name is a personal name
as stated on the proprietor’s identity card, approval of the name will not be required. On the other hand,
where a business name uses a trade name, prior approval from the Registrar of Business must be sought. The
registered name cannot be changed.
Registration can be done at the Companies Commission of Malaysia (“CCM”) or online at ezbiz.ssm.com.my.
The business must be registered no later than 30 days from the date of commencement of business. A SP
registration application must be submitted by its proprietor, and must include the following particulars:
• business name;
• commencement date of business;
• principal place of business;
• information of owner; and
![Page 114: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/114.jpg)
114 ASEAN Social Enterprise Structuring Guide
• type of business to be carried out.
The registration fee of SP varies depending on the business name, i.e. RM30.00 for personal name as stated in
the identity card and RM60.00 for trade name. Generally, the business registration certificate can be obtained
on the same day and shall expire on the date stated in the business registration certificate or upon termination
of the business.
d. Liabilities
A SP will not enjoy separate legal entity and therefore are exposed to unlimited liability. The proprietor will be
personally liable for all the profits and losses the business incurs. In the event, the business fails and liabilities
remains unsettled, any of the proprietor’s personal assets will be taken to settle all liabilities incurred by the
business.
e. Tax Treatment
The rate of taxation of a SP ranges from 0% to 28% depending on the amount of income.
f. Ongoing Governance and Regulatory Obligations
One of the main advantages of being a SP is that there is less administrative requirements. For instance, a
SP is not required to file annual return or annual accounts. Notwithstanding so, a SP must comply with the
requirements under the RBA 1956 which includes amongst others, the following:
• Changes in registered particulars
Whenever a change is made in any of the particulars registered in respect of the business, the person
responsible for the business shall, within 30 days after the change is made, submit to the Registrar of
Businesses in the prescribed form the particulars of the change.
• Termination of business
Where a registered business has been terminated, the person responsible shall within 30 days of the
termination notify the Registrar of Businesses in the prescribed form of such termination.
• Display of certificate of registration
The certificate of registration issued in respect of a business registered shall be kept exhibited in a
conspicuous place at the principal place of business.
• Corporate structure
A SP is not treated as a separate legal entity, and there is no legal distinction between the proprietor
and the business. As a result, entry into contracts and borrowings must be made in the name of the
SP instead of a corporate entity.
g. Governance
The proprietor must be a Malaysian citizen or permanent resident of Malaysia, aged 18 years and above. Only
the proprietor is allowed to make an application.
h. Finance & fundraising
![Page 115: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/115.jpg)
115 ASEAN Social Enterprise Structuring Guide
Generally, a SP is funded by personal savings or private borrowings. SPs may also seek funding through loans
from banks. However, it is more difficult for a SP to borrow money and obtain investment in their business due
to the inability to allocate share capital.
i. Case study
1L Carwash is a social enterprise that aims to reduce water wastage and preserve the environment. Every
carwash uses only one litre of water instead of the 189 litres used on average by a standard car wash.
Being structured as a sole proprietorship raises a number of difficulties for 1L Carwash, include reluctance by
other companies to work with them due to the disparity in regulatory requirements, the need for extra caution
due to unlimited liability for damage incurred by cars, the inability to offer income tax deduction receipts to
potential CSR funders, and higher taxes compared to some other structures due to the income tax rates for
individuals.
j. Resources
• Registration of Businesses Act 1956
• Guidelines for New Business Registration issued by CCM
• Guidelines for Business Name Application issued by CCM
• www.mymagic.my
![Page 116: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/116.jpg)
116 ASEAN Social Enterprise Structuring Guide
• http://www.ssm.com.my/en/sole/starting-a-sole-proprietorship-partnership
LEGAL STRUCTURE 3 – PARTNERSHIPa. Overview
A partnership is regulated by the Partnership Act 1961 (“PA 1961”) and is a business owned by two or more
persons but not exceeding 20 persons. Like a SP, a partnership business must be registered with the Registrar
of Business under the RBA 1956.
b. Advantages & disadvantages
Advantages
√√ Easy to set up with few formalities
√√ Easier to secure financial assistance from financial institutions compared with sole proprietorship
√√ Equity can be increased through enlisting additional partners
√√ Business risks can be reduced and distributed among partners
√√ The responsibilities of managing and handling the business can be divided equally among partners
Disadvantages
√: Partners may be held personally liable for the debts of the partnership
√: The lifespan of the partnership business depends on the lifespans of the partners. If any of the partners passes away or is declared bankrupt, the business is automatically dissolved, unless there is an agreement otherwise.
√: Profits must be shared with other partners.
√: Disagreements may occur between partners.
√: Joint Responsibility. Acts done by one partner within a partnership are the responsibility of all partners.
c. Establishment process, documentation & costs
The establishment process of a partnership is similar to a SP as indicated in this Guide with the exception of
the following:
• Only a trade name can be used as the business name, i.e. personal names such as that found in a
partner’s identity card cannot be used; and
• The registration fee of a partnership is RM60.
d. Liabilities
Partnerships have unlimited liability and the partners are jointly and severally liable for all debts and
![Page 117: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/117.jpg)
117 ASEAN Social Enterprise Structuring Guide
obligations of the business. Hence, the partners are responsible for paying off all of the partnership debts
personally if the partnership cannot make its payments. In the event one of the partners cannot pay the debts,
the remaining partners may be called upon to settle the outstanding debts.
e. Tax Treatment
Each partner is taxed individually based on their shares in the partnership. The income tax charged depends
on the amount of income of each partner which ranges from 0% to 28%.
f. Ongoing Governance and Regulatory Obligations
The ongoing governance and regulatory obligations are similar to those of a SP. The partnership may be
dissolved after the expiration of a fixed term, death of partner or pursuant to a court order.
g. Corporate structure
A partnership is an enterprise in which more than one person is involved with a common view of profit.
Generally, partners will formulate an agreement when forming a partnership in order to regulate the conduct
and affairs of the partnership.
Partners are at liberty to fix the duration of the partnership. In the event no fixed term has been agreed upon
for the duration of the partnership, any partner may terminate the partnership at any time by giving notice of
his intention to do so to all the other partners.
h. Governance
The PA 1961 allows for not more than 20 persons to set up a partnership (save and except for partnerships for
professional practice).
i. Finance & fundraising
• Personal savings
One of the primary sources for funding a partnership is the individual savings of each partner.
Depending on the partnership agreement, equal partners may contribute an equal amount of their
personal funds into starting and running the business. The partnership agreement could expressly
provide for each partner to be responsible up to a specific amount or for a percentage.
• Small business loans
A partnership may also approach a bank or other financial institution to apply for a small
business loan.
• Additional Partners
For existing partnerships looking to grow or expand the business, another source of funding may be to
bring in additional partners into the business.
j. Resources
• Registration of Businesses Act 1956
• Partnership Act 1961
![Page 118: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/118.jpg)
118 ASEAN Social Enterprise Structuring Guide
• www.mymagic.my
• http://www.ssm.com.my/en/sole/starting-a-sole-proprietorship-partnership
LEGAL STRUCTURE 4 – TRUSTSa. Overview
A trust is a legal arrangement in which ownership of assets is transferred from the person who set up the trust
to another person or corporation (trustee) for the benefit of one or more people (beneficiaries). The beneficiary
of a trust holds an equitable interest in the asset even though the trustee has legal ownership, meaning that
the trustee can only exercise it’s legal rights over an asset for the benefit of the beneficiaries.
The operation of a trust is governed by the Trustees (Incorporation) Act 1952 and Trustees (Incorporation)
(Amendment) Act 2004 (collectively, the “TIA”) which apply to Peninsular Malaysia only.
b. Advantages & disadvantages
Advantages
√√ Structure provides confidentiality.
√√ Avoid probate.
√√ Continuity of management during disability.
√√ Protection and preservation of assets.
Disadvantages
√: Complexity of structure.
√: Administrative costs may be high.
√: Registration of assets in the name of the trust.
c. Establishment process, documentation & costs
Trustees or a trustee may be appointed by any person or association of persons established for any religious,
educational, literary, scientific, social or charitable purpose. An application to register a trust must be made
in writing to the Minister in the Legal Affairs Division of Prime Minister Department (the “Minister”). The
application must be signed by applicants and must contain, amongst others:
1. the objects of the body or association of persons, and the rules and regulations of the same,
together with the date of, and parties to every deed, will or other instrument, if any, creating,
constituting or regulating the same;
2. a statement and short description of the land, or interest in land, which at the date of application
is possessed by, or belonging to, or held on behalf of such body or association of persons; and
3. the names, residences and descriptions of the said trustees of such body or association of
persons.
The Minister may require a statutory declaration or other evidence to verify the statements and particulars
![Page 119: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/119.jpg)
119 ASEAN Social Enterprise Structuring Guide
in the application. The Minister may refuse to grant a certificate of incorporation under the TIA if he is not
satisfied that the application has complied with the TIA. It takes approximately 21-30 working days for the
incorporation of a trust to be approved by the Minister.
Every application for a certificate of incorporation under the TIA, and every certificate issued, shall be subject
to a stamp duty of RM30.00 (RM10.00 X 3 copies).
Other documents to be submitted to the Minister include the following:
• Application form for the establishment of the Foundation
• Certified true copy of identity card for each trustee
• A copy of bankruptcy search result from the Malaysia Department of Insolvency for each trustee
• Letter of appointment of trustees by the said body or association of persons
• Details of the foundation’s objectives, vision, mission, financial resources, the activities to be undertaken,
the power to appoint the members of the board of trustees, the composition of board of trustees (not
exceeding 10 pages)
d. Liabilities
After a certificate of incorporation has been granted, all trustees of the body or association of persons,
notwithstanding their incorporation, shall be chargeable for all property they are responsible for. Further,
each person shall be answerable and accountable for their own acts, receipts, neglects and defaults, and for
the due administration of the body or association of persons and its property, in the same manner and to the
same extent as if no such incorporation had been effected.
e. Tax Treatment
If the trust qualifies as a public charity under the Income Tax Act 1967, any income earned by a charitable trust
may be tax exempt.
f. Ongoing Governance and Regulatory Obligations
Trustees shall comply with the requirements under the TIA which include, amongst others as follows:
1. If requested, the trustees shall deliver all applications for and certificates of incorporation to the
Minister to be preserved.
2. The trustees or trustee of any body or association of persons shall, in books to be kept by them for
that purpose, regularly enter or cause to be entered full and true accounts of all money received
and paid respectively on account of such body or association. Further, the Trustees shall, on or
before 30 June in every year, or any other day as appointed by the Minister, prepare and make
out accounts which includes an account of all balances in hand at the commencement of the
year and of all monies received during the same year on account of the said body or association.
3. The trustee or trustees shall immediately inform the Minister in the event of voluntary dissolution
of body corporate.
![Page 120: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/120.jpg)
120 ASEAN Social Enterprise Structuring Guide
The trustee or trustees shall also inform the Minister of any changes to the board of trustee, the address,
phone number or any other related matters. The Minister may by order revoke the Certificate of Incorporation
if found in breach of any provision of the TIA.
g. Corporate structure
A trust must be created by way of a trust deed or declaration. The trustees manage the trust fund in accordance
with the trust deed and TIA. In addition, the number of trustees for a trust shall be as per set out in the trust
deed. Under the TIA, there are no restrictions as to who shall sit in the board of trustee.
h. Governance
A trust is regulated by the TIA. The trustees or trustee shall become a body corporate by the name described in
the certificate, and shall have power to sue and be sued in such corporate name, and subject to the conditions
and directions contained in the said certificate to amongst others acquire, purchase, take, hold and enjoy
movable and immovable property.
A person shall be disqualified from being a trustee if:
1. he has been convicted of any offence under any law and sentenced to a fine of not less than one
thousand ringgit or to imprisonment for a term of not less than one year or to both;
2. there has been made and is in force against him any order of detention, supervision, restricted
residence, banishment or deportation, or if there has been imposed on him any form of restriction
or supervision, by bond or otherwise, under any law relating to the security of Malaysia or any
part thereof, the prevention of crime, preventive detention, restricted residence, banishment or
immigration;
3. he is an undischarged bankrupt; or
4. he is, or has been found or declared to be, of unsound mind.
The certificate of incorporation shall have perpetual succession unless it is revoked by the Minister.
i. Finance and fundraising
The trusts obtain financing through donations, gift and disposition of land or other interests made by deed or
trustees.
j. Resources
• Trustee (Incorporation) Act 1952
• Trustees (Incorporation) (Amendment) Act 2004
• Legal Affairs Division of the Prime Minister’s Department [http://www.bheuu.gov.my/]
![Page 121: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/121.jpg)
121 ASEAN Social Enterprise Structuring Guide
• www.mymagic.my
LEGAL STRUCTURE 4 – SOCIETIESa. Overview
The establishment of societies is governed by the Societies Act 1966 (“SA”). An unlimited number of members
can participate in a society. A society is managed by office-bearers, such as the president, vice-president,
secretary, or treasurer.
Societies are accountable to the Registrar of Societies (“ROS”). The ROS is a department under the Ministry of
Home Affairs. Until a society is registered, no person may organise or take part in any activity of or on behalf
of the society without the permission of the ROS.
The SA has a provision to set up and manage a mutual benefit society, where the voluntary subscription of
its members can provide for the relief or maintenance of the members or their family members, for example,
when they become unemployed, under distressed circumstances or paying for their funeral expenses.
b. Advantages & disadvantages
Advantages
√√ Exemption from certain tax obligations
√√ Separate legal entity
√√ Limited liability
√√ No limit of members
√√ Capable of suing and being sued in its own name
Disadvantages
√: No sense of ownership as societies do not have shares
√: Limited source of capital
√: Risks of personality clashes between members
c. Establishment Process
An application to register as a society is to be submitted online at https://www.eroses.gov.my/. The application
will then be referred to the nearest ROS branch. Generally, the following documents are required for purposes
of registration:
• Constitution
• The names of at least 7 members of your society committee
• Minutes of meeting and resolutions stating you want to set up a society
Upon completion of the registration process, the ROS shall issue a certificate with the seal of the society. The
![Page 122: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/122.jpg)
122 ASEAN Social Enterprise Structuring Guide
registration fee for a society is RM30.00, which may be paid online.
A society may also establish a branch by applying to the ROS. A processing fee of RM10.00 will be charged.
d. A society may sue or be sued in the name of any of its registered public officers. If no such person is
registered, the society may be sued in the name of any of its office-bearers. However, a registered society
cannot sue or be sued in respect of any contract entered into by any of its branches, unless the society
specifically authorised the branch to enter into it.
e. Tax Treatment
Societies may apply to the Inland Revenue of Malaysia to be exempted from contributing taxes. Only income
from transactions with non-members is considered taxable income.
f. Ongoing Governance and Regulatory Obligations
• Permissions and prohibitions regarding trading activity and reporting
Every registered society must organise annual general meetings (“AGMs”) and must forward an annual
return to the ROS within 60 days of any AGM (or of the end of the calendar year if not held).
The ROS may order any registered society to provide audited accounts, complete returns of the number
of meetings held, and list of office-bearers and society or branch members at any time.
• Restrictions on business activity in non-profit/ charity entities
Where the ROS deems it is necessary for the public interest or interest of any registered society they
may order the society not to have any affiliation, connection, or communication with any society,
organisation or any other body whatsoever outside Malaysia, or for the society to amend its rules or
constitution for office-bearers to be Federal citizens only.
g. Corporate structure
A registered society may establish a branch with prior approval from the ROS. A subordinate branch can be
under the control of another branch called the superior branch, if the members of the superior branch elect
and choose the members for the subordinate branch.
h. Governance
The members may decide and prescribe different types or classes of members with different rights.
According to the SA, the office-bearers or members that manage or assist in the management of collecting
money or subscriptions on its behalf have to reside in Malaysia.
i. Finance and fundraising
Societies are able to receive contributions and have access to public or private grants made available for non-
profit organisations.
j. Case study
Generating Opportunities for Learning Disabled (GOLD) is a social enterprise set up by the Association of
Learning Disabilities, District Petaling, Selangor. GOLD’s aim is to enable people with learning disabilities to
![Page 123: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/123.jpg)
123 ASEAN Social Enterprise Structuring Guide
maximize their potential as contributing members of society by providing training in producing a wide range
of merchandise (from cookies to door gifts).
GOLD has been very succesful, but is limited by the restriction against societies receiving loans from banks
in Malaysia. In addition, there is a risk of loss to the business if the board of trustees of members decide to
remove the current promoters, as those promoters have no ownership in the business.
k. Resources • Organisation Rules 1993
• Societies Act 1966
• Guidelines to submit Annual Return:
http://www.ros.gov.my/files/File/CARA_MENGHANTAR_PENYATA_TAHUNAN_Kemaskini_27_Mei.pdf
• Organisation Management Guidelines: http://www.ros.gov.my/index.php/en/perkhidmatan
![Page 124: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/124.jpg)
124 ASEAN Social Enterprise Structuring Guide
INCOME TAX ACT 1967
LEGAL STRUCTURE 5 – CO-OPERATIVE SOCIETIES a. Overview
Co-operative societies are governed by the Co-Operative Societies Act 1993 (“CSA”). A co-operative society
is an organisation with an objective to increase the economic significance of its members in accordance with
cooperative principles. Every member of a co-operative society shall only have one vote in the conduct of the
affairs of the co-operative society. Further, a registered co-operative society may adopt its own by-laws.
Co-operative societies are regulated by the Malaysia Co-operative Societies Commission (“MCSC”). The
Malaysian Co-operative Societies Commission (“Commission”) registers the co-operative societies.
b. Advantages and Disadvantages
Advantages
√√ Limited liability, i.e. limited to the extent of their capital in the co-operative societies
√√ Perpetual Existence
√√ Open Membership
Disadvantages
√: Difficult to form i.e. at least fifty individual persons
√: Lack of interest as the business success requires sustained efforts over a period of time.
c. Liabilities
Every co-operative society registered shall be with limited liability.
d. Tax treatment
Co-operative societies are taxed on a scale from 0% on the first RM 30,000.00 to 24% for income exceeding
RM 750,000.00. Tax exemption will apply if for the first five years of registration, the total members’ funds
are less than RM750,000.00
e. Ongoing governance and regulatory obligations
• Annual general meetings
Every co-operative society shall hold an annual general meeting of members or delegates not later
than twelve months after the close of each financial year or such longer period as may be approved by
the Commission.
• Address of co-operative society
Every co-operative society shall have an address, registered in accordance with this Act, to which all
notices and communications shall be sent, and shall inform the Commission of every change of that
address.
• Documents to be lodged with the Commission
Every co-operative society shall lodge with the Commission, amongst others, a list of members of the
![Page 125: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/125.jpg)
125 ASEAN Social Enterprise Structuring Guide
board not later than 15 days after its annual general meeting and minutes of all general meetings not
later than 30 days after the date of the meeting.
f. Corporate structure
Every co-operative society should have a Board, an Internal Audit Committee, duly appointed at the annual
general meeting.
A co-operative society may continue operating despite the bankruptcy, death or exit of the original members.
A co-operative society may be dissolved by MCSC upon receipt of an application for the dissolution from three-
fourths of its members.
g. Governance
Every co-operative society shall have a board, which shall consist of not less than six and not more than fifteen
members duly appointed at the annual general meeting subject to the regulations or orders or directives or
guidelines.
h. Finance and fundraising
Funds may be raised via entrance fees, shares subscribed by members, specific savings of members, deposits
or loans from members and non-members as well as donations and grants made by third parties. A co-
operative society shall not accept deposits from persons who are not members of that co-operative society
unless with the prior approval of the Commission.
The co-operative society may grant credit facilities to its members and employees including the chief
executive officer as provided in their schemes of service. Prior approval of the Commission will be required
if credit facilities are granted to its subsidiaries or another co-operative society. Such loan or credit facilities
granted shall be subject to the directives or guidelines issued by the Commission and by-laws of the co-
operative society.
i. Resources • The Co-operative Societies Act 1993
• http://www.skm.gov.my/index.php/en/hubungi-kami/soalan-lazim
• Co-operative Governance Guidelines issued by MCSC
• Guidelines on Establishment of Co-Operatives issued by MCSC
• Guidelines on Annual General Meeting issued by MCSC
![Page 126: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/126.jpg)
126 ASEAN Social Enterprise Structuring Guide
INCOME TAX ACT 1967
LEGAL STRUCTURE 6 – COMPANY LIMITED BY GUARANTEEa. Overview
A company limited by guarantee (“CLBG”) works differently from most companies, which are owned by
shareholders. No CLBG shall be formed with share capital. The liabilities of the members are limited to the
amount provided in the memorandum, which the members undertake to contribute if the company goes into
liquidation. In Malaysia, all CLBGs are public companies and hence the general provisions for incorporation of
public companies under the Companies Act 2016 (“CA 2016”) will apply. CLBGs are usually formed for non-
profit activities.
b. Advantages & disadvantages
Advantages
√√ A CLBG is a separate legal entity, liable for its own actions and debts
√√ Liability of members is limited to the guaranteed amount
√√ No share transfer is required each time a member leaves
√√ Unlimited number of members
Disadvantages
√: There are certain restrictions with regard to the company name
√: Difficult to raise finance as shares cannot be issued
√: Withdrawal of money from companies can be difficult.
√: Subject to ongoing public disclosure obligations and statutory control
√: Difficult to give investors a return on their investments
c. Establishment process, documentation & costs
Under the CA 2016, a CLBG may only be formed for the following objectives:
• providing recreation or amusement
• promoting commerce and industry
• promoting art
• promoting science
• promoting religion
• promoting charity
• promoting pension or superannuation schemes
• promoting any other objectives useful for the community or country, such as environment, health,
education, research, social or sports
![Page 127: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/127.jpg)
127 ASEAN Social Enterprise Structuring Guide
A CLBG must ensure that none of its members or directors use the company or its financial resources to
conduct any form of political or unlawful activities.
To establish a CLBG, the company must lodge an application with the Registrar of Companies Commission
of Malaysia (“CCM”) together with its constitution and the incorporation fee of RM3,000.00. The application
must also include the details of every director, company secretary and member, and a statement by each
promoter or director confirming his consent and qualification to act. A CLBG may apply to the Minister for a
licence to omit the word “Berhad” or the abbreviation “Bhd.” from its name.
Unlike any other company, a CLBG must have a constitution, containing:
A. the name of the company;
B. the objectives of the company;
C. the amount up to which the members undertake to contribute to the assets of the company in
the event of its being wound up;
D. the full names, addresses and occupations of the subscribers; and
E. a statement that the subscribers wish to form company under the constitution.
The company may adopt the model constitution prepared by the Registrar which can be found on www.ssm.
com.my.
d. Liabilities
The liability of CLBG members is limited to the which they undertake to contribute in the event of its being
wound up.
e. Tax treatment
A CLBG with a total capital contribution of RM2.5 million and less at the beginning of the accounting period
shall be taxed at the rate of (i) 19% for the first RM 500,000 and (ii) 24% thereafter. Paid-up capital of more
than RM2.5 million will be taxed at 24%. Tax exemption applicable to a public company involved in charitable
purposes can be obtained from the Ministry of Finance.
f. Ongoing Governance and Regulatory Obligations
Companies must make certain information public, such as an annual return, financial statements and reports.
Particulars and changes in the register of members, directors and company secretary, amendments to the
constitution, for example, also need to be filed.
• Annual returns
Every CLBG must lodge an annual return with the Registrar of CCM not later than 30 days from each
anniversary of its incorporation date. An annual return must contain general information about a
company’s registered office address, nature of business, the address of the places where its business
is carried on including branches (if any), the address at which its register of members and financial
records are kept (if not kept at the registered office), total amount of indebtedness, particulars of
directors, managers, secretaries and auditors, and its membership.
• Financial statements and reports
![Page 128: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/128.jpg)
128 ASEAN Social Enterprise Structuring Guide
Every CLBG must prepare annual financial statements that give a true and fair view of the financial
position as at the end of the financial year, and the financial performance of the company during the
financial year. The financial statements must contain information including but not limited to directors’
remuneration, directors’ retirement benefits, compensation to directors for loss of office, loans, quasi-
loans and other dealings in favour of directors and auditors’ remunerations.
A company must lodge financial statements and reports within 30 days of its annual general meeting.
• Restrictions
Unless prior approval has been obtained from the Registrar of CCM, a CLBG:
i. is prohibited from appointing new directors;
ii. is prohibited from paying any fees, salaries, fixed allowances or benefits to its directors;
iii. must use the profits and other income for the purposes stated in the objectives of the company;
iv. is prohibited from soliciting any contribution or donation or make any money collection from the
public;
v. is required to comply at all times with all the provisions set forth in the constitution.
g. Corporate structure
The structure of a CLBG at board level is the same as for all public companies. A CLBG must have a minimum
of two directors and must have at least one secretary. Any purported resignation by a director is invalid if
it would reduce the number of directors below two, unless a replacement is appointed. At least two of the
directors must ordinarily reside in Malaysia and they must not be alternate or substitute directors.
h. Governance
A director of a CLBG must be a person who is fit and proper and is not disqualified under the CA 2016. To
determine whether a person is fit and proper, the Registrar of CCM may:
a. consider the experience, qualification and competency of the director which would assist him in
carrying out his duties as director of the CLBG;
b. consider the reputation, character and integrity of the director;
c. conduct a security vetting on the potential director via the Royal Malaysian Police and/or other
agencies.
If the Registrar is satisfied that the applicant is fit and proper and competent to perform the duties of a
director under the CA 2016, the Registrar of CCM may approve the applicant as a director of a CLBG.
i. Finance & fundraising
A CLBG does not have share capital, and as such cannot raise money by issuing or allotting shares to investors.
Instead, members will contribute to the assets of the CLBG (usually a nominal amount) on winding-up. The
members can also agree to pay a membership fee which would be considered a source of income. Soliciting
public contributions or donations is not permitted.
j. Resources• Companies Act 2016
• Guidelines on Company Limited by Guarantee issued by the Companies Commission of Malaysia
![Page 129: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/129.jpg)
129 ASEAN Social Enterprise Structuring Guide
• Income Tax Act 1967
WWW.MYMAGIC.MY
LEGAL STRUCTURE 7 – PRIVATE COMPANY LIMITED BY SHARES a. Overview
The most common form of company in Malaysia are private companies limited by shares, which append “Sdn
Bhd” to their name as an abbreviation of ‘Sendirian Berhad’ (‘private limited’ in the national language). A
private company raises capital by issuing shares to private investors, and each shareholder’s liability is limited
to the amount of capital which they hold. For commercial enterprises that intend to operate a business for
profit, a private company limited by shares is normally the appropriate vehicle.
Shareholders are not responsible for the company’s debts unless they have given guarantees such as bank
loans. However, they may lose the money they have invested in the company if the company fails. Shareholders
may be individuals or other companies. However, a private company limited by shares cannot offer its shares
to the general public in the same way that a public company can.
The constitution of a private company sets out the internal management structure and procedures of the
company.
b. Advantages and Disadvantages
Advantages
√√ Separate legal entity, therefore liability of shareholders for the debts of the company are limited to the amount of capital held.
√√ Company can enter into contracts in its own name.
√√ Ease in raising capital via issuance of shares.
Disadvantages
√: Must comply with prescribed procedure of incorporation.
√: Ongoing reporting obligations with the Companies Commission of Malaysia.
√: Prescribed form of accounts and certain company information is publicly available.
c. Establishment process, documentation & costs
A name search will first need to be done to check the availability of the name for the CCM’s approval. This
will usually take up to five business days. Once the company name has been approved, it will be reserved
for a period of time within which the incorporation documents will need to be submitted to the CCM. If the
documents are complete, a notice of incorporation will usually be issued within five business days upon receipt
of the required information and documents.
A company may be incorporated with a minimum of one share, at any value the company decides its shares
should be worth, and may have a single individual as both the shareholder and director. The filing fee for
incorporation will be RM 1,000.00 regardless of how many shares the company decides to incorporate with. A
private company must have a minimum of one director who’s principal place of residence is in Malaysia.
![Page 130: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/130.jpg)
130 ASEAN Social Enterprise Structuring Guide
d. Liabilities
• Shareholders’ liability
The shareholders’ liability is limited to the amount of their investment in the company. If the shareholder
has purchased shares directly from the company but has not paid for them, they will be liable to
contribute to the assets to the amount remaining unpaid on their shares.
• Directors’ liability
The directors of a private company also benefit from limited liability so that the company, and not the
directors, is liable for its own debts. However, in exceptional circumstances such as where a personal
guarantee has been provided to financial institutions, the directors may be personally liable.
e. Tax Treatment
Private limited companies are currently taxed at the rate of 24%. Private companies with paid-up capital of
RM2.5 million or less are considered to be small to medium enterprises (“SMEs”) and are taxed at 19% on the
first RM 500,000.00 and at 24% thereafter.
f. Ongoing Governance and Regulatory Obligations
• Annual return
Except for the first year after incorporation, all companies must lodge annual returns for each calendar
year with the Registrar of CCMs within thirty days of the anniversary of their incorporation date.
• Accounting records
All companies must keep accounting and other records to sufficiently explain their transactions
and financial position and enable true and fair profit/loss accounts balance sheets to be prepared.
All entries to be made in the accounting and other records must be made within sixty days of the
completion of the transactions to which the entries relate.
The records must be kept at the registered office of the company or at such other place as the directors
think fit. This can be a place outside Malaysia, provided that the records are sent to and kept at a place
in Malaysia to be available for inspection by the directors at all times.
Failure to do so is an offence punishable on conviction by a fine not exceeding RM500,000 or
imprisonment for a term not exceeding three years, or both.
• Financial statements
The directors must prepare financial statements within eighteen months from the date of incorporation,
and subsequently within six months of its financial year end. These financial statements must be sent
to all the parties stipulated in the Companies Act. Private companies must lodge financial statements
and reports annually, within thirty days from the financial statements and reports being circulated to
its members, which in turn must be within six months of the company’s financial year end.
• Other filing requirements
Private companies are also under a duty to abide by the statutory filing requirements and deadlines
as provided in the CA 2016, which include but are not limited to the following actions: change in
registered office, change in directors, change in register of member and return of allotment of shares.
![Page 131: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/131.jpg)
131 ASEAN Social Enterprise Structuring Guide
g. Corporate Structure
Private companies limited by shares are governed by both their board of directors and their shareholders
under the Companies Act and the company’s articles of association. The board of directors are responsible
for the day-to-day running of the organisation and records its decisions in board minutes. The shareholders
have a number of fundamental powers. In particular, the shareholders have the power to dismiss the board.
Certain decisions and changes relating to the company will require shareholder approval either by an ordinary
or a special resolution. A special resolution requires shareholders holding at least 75% of the total issued
shares of the company to agree, whereas an ordinary resolution requires shareholders holding at least 50%
of the total issued shares of the company to agree. For example, variation of class rights and reduction of the
company’s share capital are among the matters which require a special resolution.
h. Governance
There are no restrictions in regards to board composition. Foreigners can sit on the board; a foreigner can
form a company as the sole shareholder. However, if he wants to be the sole director of the company, he has
to fulfil the residency requirement by having a principal place of residence in Malaysia.
i. Finance & fundraising
The primary advantages of a private company limited by shares is the ability to raise capital from external
investors by the issuance of shares, and the ability to enter into commercial contracts without its directors or
shareholders risking personal liability.
j. Case study
SURI is a Social Enterprise that empowers low-income single mothers in the community of Sg. Udang Klang
who struggle with financial challenges yet aspire to improve their household income. Their goal is to eliminate
hardship and poverty for single mothers and their children. Although there are many benefits to establishing
as a limited company for their organisation, the regulatory burden caused by annual audits as set by the
Companies Commission of Malaysia is very costly for a newly established social enterprise, and much like
some other structures they are unable to work with some corporate entities which required income tax
deduction receipts.
k. Resources • www.ssm.com.my
• Companies Act 2016
• Income Tax Act 1967
Is it advisable to have more than one legal form? (e.g. hybrid structure if I have different forms of income)
Each form of legal structure has its own advantages, disadvantages and tax treatments. Different form of
legal structures could in theory benefit from a wider range of tax allowances and benefits. However, this would
depend on the incentives that are being sought and forms of income available.
I already have an organisation registered as a charity/NGO, can I transition to a social enterprise model?
Yes, it is possible. We understand that there were instances where registered societies became or adopted
social enterprise model.
![Page 132: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/132.jpg)
REUTERS/SOE ZEYA TUN
132
myanmar
![Page 133: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/133.jpg)
133 ASEAN Social Enterprise Structuring Guide
INTRODUCTIONProgressing quickly from its landmark elections in November 2015, Myanmar is experiencing
a profound transition, witnessing rapid changes in its legal and regulatory landscape, as well
as undergoing transformation in its political, social, and economic sectors. These changes have
had a significant impact on social contributions. In 2016, for the third consecutive year, Myanmar
topped the Charities Aid Foundation’s World Giving Index, a leading study on global generosity and
charitable behaviour around the world.1
With an entrenched culture of charity and giving, it is no surprise that many businesses in Myanmar
have a social mission driving their business operations. As the newly-elected democratic government
embarks on a wide-ranging reform process in the business sector, social enterprises are emerging
as a viable form of combining business activities with a social mission.
The concept of social enterprises in Myanmar is still new, albeit growing in visibility. There is currently
no official legal definition of what constitutes a “social enterprise” in Myanmar. Nonetheless, as in
other ASEAN countries, self-identified social enterprises that are emerging in Myanmar are typically
businesses or organisations which are established with the primary purpose of addressing a social
cause, rather than focusing on the maximisation of commercial profits for investors. In Myanmar,
most social enterprises revolve around providing access to finance, livelihood enhancement
programmes and vocational training.
In the past, there was an absence of a legislative framework dedicated to the governance of social
enterprises in the country, resulting in the formation of social ventures with a diversity of legal
forms. At present, there continues to be many legal structures available to social entrepreneurs
wishing to establish a social enterprise in Myanmar. In making an informed decision concerning the
legal structure best suited for their program, social entrepreneurs in Myanmar need to take into
account many considerations, including:
• ownership of the social enterprise;
• legal and practical ability to implement planned activities under the preferred structure;
• establishment costs;
• compliance requirements;
• the financing of the social enterprise and how the generated profits will be utilised;
• the nature of the social enterprise and the related industry in which it operates; and
• the tax implications of the social enterprise structure.
myanmar
1. https://www.cafonline.org.
![Page 134: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/134.jpg)
134 ASEAN Social Enterprise Structuring Guide
In the next section, we will explore the various legal forms available to social enterprises in Myanmar, and the
implications associated with each structure. The legal structures for social enterprises in Myanmar include:
• sole proprietorships and partnerships;
• private companies;
• INGOs and NGOs; and
• cooperative societies.
Also covered in this chapter are the benefits obtained from the different types of additional administrative
registrations available to social enterprises under the four different structures mentioned above, such as
council registrations, and small and medium enterprise (SME) registrations.
![Page 135: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/135.jpg)
135 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 1 – SOLE PROPRIETORSHIPS AND PARTNERSHIPS a. Overview
This option is currently only available to Myanmar citizens. A social enterprise can be established by one or
more Myanmar citizens as a sole proprietorship or as a partnership. A sole proprietor is essentially a single
person who operates a venture on his or her own, and such ventures are generally small in scale with very few
employees, if any. The addition of any other owners (co-owners) will turn such an operation into a partnership.
Currently, there is no requirement to register sole proprietorships or partnerships with the Directorate of
Investment and Company Administration (DICA) of Myanmar, the government agency normally responsible
for registering businesses in Myanmar.
However, there is an option for sole proprietors and partners to have their businesses registered with the
Central Department of Small and Medium Enterprises Development in accordance with the Small and Medium
Enterprises Development Law 2015, which falls under the purview of the Ministry of Industry. Under this SME
law, unregistered businesses can be accorded SME registration if the business does not cause fire, health
and safety hazards, and brings minimal adverse impacts to the natural and socioeconomic environment.2
An SME registration opens up access to loans from certain financial institutions not otherwise accessible to
unregistered businesses.
b. Advantages & disadvantages
Advantages
√√ Simple and easy. Since there are no formal set-up, registration, or public reporting requirements, establishment and operation costs for sole proprietorships and partnerships are significantly lower than other forms of social enterprise. Social entrepreneurs are able to kick start their ventures immediately.
√√ Flexibility. The owner(s) have full authority to decide on the generation, flow, and utilization of profits, and the management of the venture, and are not bound by instructions from a management board or DICA regulations.
Disadvantages
√: Unavailable to foreigners. Currently, foreigners who wish to conduct any form of business in
Myanmar can only do so through the incorporation of a private company with DICA.3
√: No corporate veil. The lack of a legal entity means sole proprietors and partners do not enjoy limited liability for their business activities. In other words, the owners of an unregistered business are personally responsible for the debts and obligations of the venture, and personal assets of the owners can be seized in order to satisfy any outstanding business debts.
√: Hinders business opportunities. Unregistered businesses may not inspire the same level of confidence in the general public as registered ones. This in turn makes it challenging for unregistered small businesses to partner or to do business with other companies, organizations or the government in Myanmar.
2. Section 19, Small and Medium Enterprises Development Law 2015.3. Section 27A, Myanmar Companies Act 1914.
![Page 136: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/136.jpg)
136 ASEAN Social Enterprise Structuring Guide
√: Difficulty in raising finances. It is difficult for unregistered businesses to obtain large loans to fund their business operations. Lenders may be deterred by the lack of continuity in sole proprietorships and partnerships, as there is increased risk of sudden termination.
c. Establishment process, documentation & costs
Sole proprietorships and partnerships are not required to register with DICA, so social entrepreneurs opting
for this route are free to commence their ventures immediately. One important note is that since there is no
official registration with DICA, social entrepreneurs who wish to protect or secure the rights to the names of
their ventures should consider recording their trade names as a trademark in Myanmar.
There is no trademarks act in Myanmar, and as a result, the recordal of trademarks is a simple and straightforward
process. This is done by way of recording a notarized Declaration of Ownership of Trademark with the Office
of Registration of Deeds, a process which can be completed in one to two months. A nominal stamp duty of
MMK 200 is payable for a Declaration of Ownership of Trademark. Upon recordal of the trademark, social
entrepreneurs can also publish a cautionary notice of their ownership of the trademark in local newspapers.
If the social venture of the sole proprietor or partnership involves the opening of a shop or related
establishment, such as a restaurant, a café, a showroom, or a bookstore, an establishment license must be
acquired from the respective city council or municipal office. In Yangon, the relevant authority is the Yangon
City Development Committee. The required documents to apply for an establishment license at the relevant
city council or municipal office differ based on the nature of the establishment, but will typically include the
following information / documents:
• Copy of the applicant’s National Registration Card
• Three photographs of the applicant
• Documents evidencing the right of possession at the location of the establishment
• Three photographs depicting the location of the establishment showing the precinct, exterior and
interior
• Letters of approval from 10 people within the neighborhood of the establishment building who have
agreed to, or have no objection to, the business being carried out
• Liquor license or permit, where applicable (e.g. for restaurants selling liquor)
• Recommendation from the fire station of the relevant township
• Recommendation from the health officer of the Township Development Committee Office
• Other documents as deemed necessary by the city council or municipal office
The registration fees for an establishment license vary depending upon the type of business, and range
from MMK 50,000 to MMK 150,000 per year. All establishments are also required to pay signboard tax of
approximately MMK 5,000 per square foot, varying according to the type of business.
For social entrepreneurs wishing to obtain SME registration, an application must be submitted to the Central
Department of Small and Medium Enterprises Development, under the Directorate of Industrial Supervision
![Page 137: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/137.jpg)
137 ASEAN Social Enterprise Structuring Guide
and Inspection. The application form issued by the directorate requires a comprehensive list of details to be
provided, including:
• general information about the applicant’s business, such as the nature and location of the business,
investment capital and profits in the past financial year and number of employees; and,
• detailed information about the business, such as its own assessment of the success of its current
operations, issues faced during the course of operations, and any existing awards, certifications and
permits which it has obtained.
The registration fees are MMK 10,000 for medium-size enterprises and MMK 5,000 for small-size enterprises.
In practice, it takes approximately two to three months for an SME application to be processed and approved,
upon which an SME Smart Card will be issued to the successful applicant.
d. Liabilities
Unlike private companies, sole proprietors and partners do not have a separate legal entity which shields
owners from personal liability. As such, a major drawback is that they do not benefit from limited liability,
and are personally liable for debts and obligations of the business venture. In short, the exposure to personal
liability is high. Therefore, sole proprietorships and partnerships may not offer social entrepreneurs adequate
protection against the potential liabilities associated with high-risk industries.
e. Tax treatment
Sole proprietors and partners are required to report the income of their ventures on their personal income
tax returns. The principal legislation governing income taxes in Myanmar is the Income Tax Law 1974. It is
supplemented by the Union Taxation Law, which is re-issued annually to prescribe the applicable tax rates for
each fiscal year.
The current personal income tax rates are at a progressive rate of 0-25 percent with a personal deduction for
residents of 20 percent of the total salary, capped at MMK 10,000,000:4
Income Bracket Progressive Rates
MMK 1- MMK 2,000,000 0 percent
MMK 2,000,001-MMK 5,000,000 5 percent
MMK 5,000,001-MMK 10,000,000 10 percent
MMK 10,000,001-MMK 20,000,000 15 percent
MMK 20,000,001-MMK 30,000,000 20 percent
MMK 30,000,001 and above 25 percent
Income tax is not levied on a person whose annual income is below MMK 800,000.5 There are also tax
allowances for children and spouses, including allowances of MMK 1,000,000 for married couples, MMK
1,000,000 for each parent that lives together with the taxpayer, and MMK 500,000 for every child.6
Businesses registered as SMEs enjoy a tax exemption on income not exceeding MMK 10,000,000 annually
during the first three years (inclusive of the year of commencement of business). Income tax is assessed on
income in excess of MMK 10,000,000 annually during those years.7
4. Sections 19(c) and 20, Union Taxation Law 2017. 5. Section 19(a), Union Taxation Law 2017. 6. Section 21, Union Taxation Law 2017. 7. Section 29, Union Taxation Law 2017.
![Page 138: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/138.jpg)
138 ASEAN Social Enterprise Structuring Guide
f. Ongoing governance and regulatory obligations
There are no applicable governance and regulatory obligations imposed on sole proprietorships and
partnerships other than reporting their income and paying income tax. The owners of the social ventures
will have full control over the operations, and no formal records are required by law. It is nonetheless good
practice for social entrepreneurs to put in place a proper record-keeping system to document expenses and
income for tax and other purposes.
For social ventures which have obtained SME registration, the law explicitly places the responsibility of
maintaining statistics and records upon the entrepreneurs.8 However, based on current practice, there is no
legal requirement for SMEs to submit annual reports or financial statements to the Central Department of
Small and Medium Enterprises Development. Nevertheless, when there are changes to the capital investment,
size of workforce and annual income, which render a social venture’s SME categorization to be inconsistent
with the specifications of its registration, entrepreneurs are obliged to notify the Central Department of Small
and Medium Enterprises Development of the changes and obtain a new registration for the SME.9
g. Corporate structure
For social ventures carried out through sole proprietorships or partnerships, no formal structures are required
and business decisions are made at the full discretion of the sole proprietor or the partners. Social entrepreneurs
can therefore wholly dedicate their time to building and operating the social enterprise. Similarly, no operating
agreements are required, although for partnerships, a partnership agreement is strongly recommended.
h. Governance
Governance of this kind of venture lies entirely in the hands of the individual social entrepreneurs, and normally
there is no board or other governing committee. There are no applicable statutory restrictions.
i. Finance & fundraising
While sole proprietorships and partnerships typically start with limited funds originating from the owners’
personal funds or personal loans, larger amounts of capital may be required as the social venture begins
to grow. The funding options available to social ventures operating in the form of sole proprietorships or
partnerships remain limited. For instance, unlike private companies, a sole proprietor is unable to issue
equity interest in order to raise capital for the social venture. It is also challenging for unregistered businesses
to obtain large loans from banks and other financial institutions, which typically require proof of business
registration and a track record of financially successful operation.
Nonetheless, for social entrepreneurs who have obtained SME registration, SME loans may now be obtained
from selected local banks in Myanmar if qualifying requirements are met. No proof of an incorporated company
is required, as long as loan applicants can prove their SME registration. Depending on the type and amount
of loan obtained, some banks do not require the borrower to provide property as collateral. Repayment terms
range from one to five years. According to the Global New Light of Myanmar, a government-owned newspaper
published by the Ministry of Information, the Yangon Region Government granted MMK 2.2 billion worth of
loans to 98 SMEs in the fiscal year 2016 – 2017.10
8. Section 18(d), Small and Medium Enterprises Development Law 2015.9. Section 18(c), Small and Medium Enterprises Development Law 2015.10. Global New Light of Myanmar, 5 April 2017, page 5.
![Page 139: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/139.jpg)
139 ASEAN Social Enterprise Structuring Guide
Social entrepreneurs can also obtain funding through participation in incubator and accelerator programmes
in Myanmar, sponsored by both private and government sources, although most of the programmes are
currently focused on technology-based ventures. However, the injection of some of these investments may
be contingent upon social entrepreneurs eventually formalizing their business through a DICA registration.
j. Resources
• SME Development Center, www.smedevelopmentcenter.gov.mm
• Global New Light of Myanmar, www.moi.gov.mm/npe/nlm/
![Page 140: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/140.jpg)
140 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 2 – PRIVATE COMPANIESa. Overview
Social entrepreneurs can register their ventures with DICA as a private company limited by shares under the
Myanmar Companies Act 1914. The new Myanmar Companies Law 2017 has been enacted and signed into
law in December 2017, but is not yet in force due to administrative requirements which are expected to be
implemented in mid-2018. While it is very common for social enterprises to derive income from sales of goods
and other forms of trade, trading activities are presently limited to 100 percent locally-owned entities only. Only
companies with 100 percent Myanmar shareholding, whether by Myanmar individuals or Myanmar corporate
entities, are free to engage in all types of social enterprises. Companies with any foreign shareholding are
categorized as foreign companies, and are not allowed to engage in trading activities in Myanmar (though may
change upon the entry into force of the new Companies Law 2017, which describes defines foreign company
as a locally-incorporated entity in which a foreign entity or foreigner holds at least 35% of its ownership or
control). Currently, exceptions are made for joint ventures formed with local citizens for the trade of fertilizers,
seeds, pesticides, hospital equipment or construction materials, as well as manufacturing activities, the
operation of vocational training centres, and other prescribed activities.
Foreign investors wishing to participate in manufacturing and trading activities without collaboration with local
partners can apply to obtain a permit from the Myanmar Investment Commission (MIC) in accordance with the
Myanmar Investment Law 2016. However, this is for capital-intensive and large-scale investments only, and
therefore may not be feasible for social enterprises. For social ventures wholly owned by Myanmar citizens,
there is also an option for registered private companies to obtain SME registration detailed in paragraph (c) of
the Sole Proprietorship and Partnership section above, which can lead to tax benefits.
b. Advantages & disadvantages
Advantages
√√ Separate legal entity. Liabilities of shareholders are limited to the amount paid for their shares and personal assets of shareholders are not at risk.
√√ Ability to raise finance. The social venture can issue shares to raise its capital. There is also greater access to financing options, such as through bank loans, shareholder loans or increase in capitalization.
Tax deductions for SME-registered companies. For tax benefits available to SME-registered companies,
see section (e) below.
Disadvantages
√: Restrictions on foreign shareholding. Foreign social entrepreneurs may not be able to engage in certain ventures restricted to local citizens. For instance, foreigners are not allowed to be involved in trading and import activities, which is a major obstacle for many foreign social ventures.
√: Ongoing reporting obligations. Registered companies are required to regularly comply with reporting and company maintenance obligations (e.g., annual audit and corporate administrative requirements). Such obligations also mean that the social venture’s financial statements may be publicly available.
![Page 141: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/141.jpg)
141 ASEAN Social Enterprise Structuring Guide
√: Not readily identifiable as a social venture. A private company may not be eligible for forms of support typically available to non-profit organizations, as companies are generally perceived as profit-seeking entities not concerned with social matters benefitting the public.
c. Establishment process, documentation & costs
The table below illustrates the establishment process, the required documents, and the administrative fees
and costs involved in the establishment of a private limited company in Myanmar:
No. Description Required Documents Costs
1.Checking the availability of company name.
Company name check form MMK 1,000
2.Obtaining company registration forms and payment of stamp duty.
• Application cover letter
• Declaration of registration (Form 1)
• Location of registered office form
• Declaration of legal version
• Certificate of translation
• Directors’ details (Form 26)
• Memorandum of association
• Articles of association
• Application form for permit (Form A)
• Statement of company objectives and undertaking not to conduct trading activities
Other documents to be provided by applicants:• Copy of passports of shareholders (if individuals)
or
• directors’ resolution (if a company)
• Copy of passports of foreign directors or copy of the national registration card (NRC) of local directors.
MMK 5,100
Stamp Duty:MMK 65,000 (if authorized capital ≤ MMK 100 million)
MMK 165,000 (if authorized capital > MMK 100 million)
3.Submission of registration documents to DICA and payment of fees.
• Application cover letter
• Declaration of registration (Form 1)
• Location of registered office form
• Declaration of legal version
• Certificate of translation
• Statement of company objectives and undertaking not to conduct trading
• Directors’ details (Form 26)
• Memorandum of association
• Articles of association
• Application form for permit (Form A)
• Copy of passport of shareholder and/or directors’ resolution
• Copy of passport of foreign directors or copy of the NRC of local directors.-
MMK 500,000
4.Issuance of temporary incorporation certificate and permit to trade.
N/A N/A
![Page 142: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/142.jpg)
142 ASEAN Social Enterprise Structuring Guide
No. Description Required Documents Costs
5. Transfer of minimum capital.
• Credit advice confirming transfer of minimum capital required
• Conditions letter signed by company
Minimum capital:
USD 50,000 for foreign service companies
USD 150,000 for other foreign companies
No minimum capital for 100 percent Myanmar citizen-owned companies
6.Issuance of permanent incorporation certificate and permit to trade.
N/A N/A
Apart from incorporating as a private company under the Myanmar Companies Act 1914, social ventures
wholly owned by Myanmar citizens can also apply for SME registration detailed in paragraph (c) of the Sole
Proprietorship and Partnership section above. The same application procedures apply.
In addition, where the nature of the social venture involves carrying out business at a physical establishment,
a city council or municipal office establishment license, as detailed in paragraph (c) of the Sole Proprietorship
and Partnership section above, is required.
d. Liabilities
In a private company, a shareholder’s liability is limited to the amount of their investment in the company, i.e.,
the amount paid for the shares. A director may be protected by the company for all liabilities incurred during
the execution and discharge of duties on behalf of the company.
e. Tax treatment
Under Myanmar laws, all companies formed under the Myanmar Companies Act 1914 are considered as
residents for tax purposes. Currently, corporate income tax is applied at a flat rate of 25 percent of annual
profits.11 Corporate income tax registration must be done at the Company Circle Tax Office, after which tax
identification numbers will be issued. A financial year in Myanmar runs from April 1 of one year to March 31
of the following year (the financial year will run from October 1 to September 30 beginning in 2018-19), and
annual tax returns have to be submitted within three months of the end of each financial year, which falls on
June 30. Adjustments can be made after submission of annual tax returns, and overpayments can be brought
forward in the following fiscal year.
For the income tax payable by employees, employers must withhold tax at the relevant rate every month, and
pay it to the tax office at the relevant township within seven days from the date of withholding. The township
tax office will issue a tax identification number, together with a tax record book, for each employee when the
employer files applicable taxes on their behalf. All taxes paid by the employee will be manually recorded in
the tax record book.
11. Section 23(a), Union Taxation Law 2017.
![Page 143: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/143.jpg)
143 ASEAN Social Enterprise Structuring Guide
Private companies registered as SMEs are also eligible to enjoy the tax allowances applicable to SMEs, i.e., a
tax exemption for income under MMK 10,000,000 per year during the first three years (inclusive of the year
of commencement of business) as mentioned in paragraph (e) of the Sole Proprietorship and Partnership
section above.
f. Ongoing governance and regulatory obligations
The Myanmar Companies Act 1914 requires all companies to maintain proper books of accounts, in Burmese
or English, with respect to:12
• all sums of money received and expended by the company and the matters in which the receipt and
expenditure took place;
• all sales and purchases of goods by the company; and
• the assets and liabilities of the company.
A social enterprise registered as a private company in Myanmar must submit audited financial statements
to the Internal Revenue Department by June 30 every year, i.e., three months from the end of the financial
year. Companies must also hold their first annual general meeting (AGM) within 18 months of incorporation,
and hold at least one general meeting every subsequent year.13 A set of audited financial statements must be
submitted to shareholders at every AGM. In addition, within 21 days of the AGM, an annual return (Form E)
must be filed with DICA, containing the following information:
• The meeting date
• Information on shareholders
• A list of directors
• The capital structure of the company
A private company must also submit its annual audited financial statement and AGM minutes to DICA.
Moreover, every company is required to submit a copy of every extraordinary and special resolution of the
company to DICA within 15 days from the date of the resolution. Company registration is valid for five years,
and can be renewed an unlimited number of times (every five years). To renew a company registration, the
following information and documents must be provided:
For locally owned companies
• Application form for the renewal of registration
• Updated Form E
• Updated Form 26
• Financial report and annual report of the company
• Certified copy of the income tax clearance from the Internal Revenue Department
• Current address of the company
12. Section 130, Myanmar Companies Act 1914. 13. Section 131, Myanmar Companies Act 1914.
![Page 144: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/144.jpg)
144 ASEAN Social Enterprise Structuring Guide
For foreign-owned companies
• Application form for the renewal of registration
• Form A
• Specific business activities of the company
• List of directors/shareholders
• Updated Form E
• Audited financial statements for the last two years
• Credit advices relating to any capital brought in
• Copy of Myanmar Investment Commission permit, if applicable
• Updated tour license (for tour companies only)
• Certified copy of the income tax clearance from the Internal Revenue Department
Depending on the nature of the social enterprise, it may also be necessary to obtain certain industry-specific
permits.
For example, social enterprises involved in the microfinance industry will have to obtain a microfinance license
from the Financial Regulatory Department of the Ministry of Planning and Finance, in accordance with the
Microfinance Business Law 2011. Currently, the loans granted by microfinance institutions in Myanmar shall
not exceed MMK 500,000, and the interest rates on microcredits are charged at MMK 2.50 per month, without
exceeding MMK 30 per year, for every MMK 100 loaned. The application for a microfinance license costs MMK
50,000, and the initial and annual license fees are charged at 0.1 percent of the paid capital. As a note, a non-
deposit-taking microfinance institution may be formed with a minimum capital of MMK 100 million, whilst a
deposit-taking institution requires a minimum capital of MMK 300 million. The initial license fees must be paid
within 15 days of receiving the temporary microfinance license.
Another example of industry-specific permits is for social enterprises involved in the manufacture and sale
of food products. These enterprises will need to obtain a food recommendation from the Food and Drug
Administration (FDA), under the Ministry of Health. For foreign-owned social enterprises, this can only be
done with an MIC permit. In Myanmar, a Certificate of Good Manufacturing Practice (GMP) is mandatory in the
food manufacturing industry. The criteria that the FDA considers when issuing GMP recommendations include
microorganism detection or chemical tests for safety and quality of the food product, in accordance with the
Codex Guideline on General Principles of Food Hygiene CAC/RCP 1-1969. The GMP recommendation is valid
for two years and the food manufacturing factory will be inspected three times per year. The Myanmar FDA
also encourages food manufacturers to apply for the HACCP (Hazard Analysis and Critical Control Points)
certification.
g. Corporate structure
Although the Myanmar Companies Act 1914 makes reference to private companies limited by guarantees,
in reality private companies in Myanmar are limited by shares only. DICA provides a model memorandum
of association and articles of association, which must be adopted by all private companies. Amendments to
these templates are rarely allowed.
![Page 145: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/145.jpg)
145 ASEAN Social Enterprise Structuring Guide
h. Governance
The number of shareholders in a private company may range from a minimum of two to a maximum of fifty. A
minimum of two directors must also be appointed.
i. Finance & fundraising
A private company structure can facilitate equity investment, as well as loan and debt financing. Private
companies can generate financing in several ways: (1) By issuing shares to shareholders within the scope of
the companies’ authorized capital; (2) By increasing authorized capital; or (3) By borrowing from local banks.
Although less common, private companies may also conduct crowdfunding activities. Apart from that, private
companies can also raise finance through venture capital funds, although very few social venture capitalists or
impact funds are currently making investments in Myanmar.
j. Resources
• “How to Register Your Company in Myanmar,” www.dica.gov.mm/sites/dica.gov.mm/files/uploads/
pdf/how_to_register_eng.pdf
![Page 146: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/146.jpg)
146 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 3 – INTERNATIONAL NON-GOVERNMENTAL ORGANIZATIONS (INGOS) / NON-GOVERNMENTAL ORGANIZATION (NGOS) a. Overview
Some social enterprises opt for a non-profit structure. For those who prefer this route, social enterprises can
be registered as NGOs or INGOs in Myanmar in accordance with the Registration of Organizations Law 2014.
An NGO is described in the law as a “local non-profit civil society, organized with five or more persons for the
benefit of state and citizens in line with the fundamental rights stated in the constitution and also either for an
objective or for an activity or for common interests of the members. The expression includes branches of the
organization.” An INGO is defined as “…an organization formed in a foreign country and registered with the
Union Registration Board with the intention to perform any social activity within the country.”
b. Advantages & disadvantages
Advantages
√√ Possibility of tax exemption. INGOs and NGOs are not required to pay tax on income which is used for charitable purposes or social causes.14 An INGO can also seek approval for further tax exemption after entering into mandatory memorandums of understanding with relevant government ministries concerning services to be provided by the INGO.
√√ Enhancing the focus on social mission. Social enterprises registering as NGOs and INGOs are able to focus on their social mission, free from the need to expend human and capital resources to seek financial profit from its activities. By contrast, at times, social enterprises registered as private companies may find it difficult to balance its core social mission, which may not be integrated into its company objectives, with its profit generating activities.
Disadvantages
√√ Long and unpredictable registration process. The INGO registration process is long and potentially costly. As part of the process, it is necessary to negotiate and sign a memorandum of understanding with the relevant government ministry for the social activity planned. This usually takes a year, although at least one organization with good intergovernmental connections indicated that they recently obtained an MOU in less than half that time.
√√ Bureaucratic procedures. Approval from multiple authorities is required, including approvals from the relevant line ministries, the Ministry of Foreign Affairs, the Ministry of Planning and Finance and local authorities at project sites.
√√ Dependency on financial sponsors. Since NGOs and INGOs do not engage in profit-making activities, they need a reliable source of income from donations, grants and other sources, which tend to be short-term funding, with inconsistent availability for intended projects. INGOs also normally depend on full or partial financial support from their home country organization.
14. Section 5, Income Tax Law 1974.
![Page 147: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/147.jpg)
147 ASEAN Social Enterprise Structuring Guide
c. Establishment process, documentation & costs
Application for NGONGOs register by submitting their applications to a registration committee that corresponds to their intended
geographic area of social activities, as identified in the chart below.
No. Registration Committee Issuance of Reg. Cert. Notification of Rejection
1 Union Registration Committee 90 days 30 days
2 Region or State Registration Committee 60 days 30 days
3 Nay Pyi Taw Council Registration Committee 60 days 30 days
4Self-administered Region or Self-administered
Zone Leading Body 30 days 15 days
5 Divisional Registration Committee 30 days 15 days
6 Township Registration Committee 30 days 15 days
A temporary registration certificate will be issued within seven days of submitting the application. The time
period for the issuance of the full certificate of registration or notification of rejection depends on the type of
registration committee selected by the NGO, as shown above.
The application should contain the following details:
• Name of the NGO
• Address and contact details
• Commencement date of formation
• Objectives
• Activities
• Number of executives
• Number of members
• Fund and assets owned by the organization
• Activities performed
• Organizational structure and scheme
• Other particulars (if any)
• Date of application
Upon approval of its application for registration, the social enterprise registering as an NGO must pay
registration fees (where applicable) before the registration certificate will be issued. The associated fees are
listed below.
No. Registration Committee Fees
1 Union Registration Committee MMK 100,000
2 Region or State Registration Committee MMK 30,000
3 Nay Pyi Taw Council Registration Committee MMK 30,000
4 Self-administered Region or Self-administered Zone Leading Body 0
5 Divisional Registration Committee 0
6 Township Registration Committee 0
Registration of NGOs must be renewed every five years, but there is no fee for renewals.
![Page 148: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/148.jpg)
148 ASEAN Social Enterprise Structuring Guide
Application for INGO
A social enterprise that wishes to register as an INGO must register as a non-profit organization with the Union
Registration Board. To do this, an organization requires the following documents:
• A letter of recommendation from the Ministry of Foreign Affairs
• A letter of recommendation from the Ministry of National Planning and Economic Development
• A letter of recommendation from the relevant line ministry/ministries or organizations associated with
the intended core activities of the INGO
• Permission from relevant region or state government or the Nay Pyi Taw Council, based on the location
where the social venture will operate
The application dossier must be supported by a completed prescribed form (Form 3) issued by the Ministry of
Home Affairs, detailing the following:
• Name of INGO
• Name of chairman
• Name of representative/authorized person
• Location and address, contact phone/fax numbers
• Associated country
• The activities to be conducted in Myanmar
• The names of relevant ministry/ ministries
• Project plan
• Number of executives
• Location of branch office and its address, contact phone/fax numbers
• Name of representative of the branch office
• Application date
The completed application dossier should be submitted to the Union Registration Board in Nay Pyi Taw. A
temporary registration certificate will be issued within seven days of submitting the application, and a full
certificate of registration will be issued 90 days after the date of approval. Should an application be denied,
an official letter will be issued by the Union Registration Board within 30 days.
The registration fee is MMK 100,000. Any changes to the organization’s activities or operations require
approval from the Union Registration Board. The full registration process for an INGO usually takes about one
year or longer. Registration is valid for five years before renewal is required
In addition to the registration process detailed above, social enterprises wishing to be recognised as INGOs in
Myanmar are also required to negotiate Memorandums of Understanding with specific line ministries related
to the nature of the INGO’s social activities to obtain approval to implement programmes. This is a parallel
and separate process from registration and usually involves multiple line ministries, as well as the Ministry of
National Planning and Economic Development. The MOU requirement does not apply to NGOs.
![Page 149: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/149.jpg)
149 ASEAN Social Enterprise Structuring Guide
Currently, there is no specific law, regulation, or comprehensive document outlining the procedures for
obtaining MOUs, with the process varying considerably depending on the line ministries involved, geographic
areas of operation, and types of activities being proposed or implemented.
MOUs usually take anywhere from one year to upwards of three years to negotiate and secure approval and
signing. Certain INGOs have been able to obtain interim ‘letters of authorization’ from their main line ministry
granting them permission to start programs while awaiting formal approval of their MOU. However, this
appears to remain at the discretion of individual line ministries and officials.
The MOU consists of three parts, namely:
• Basic Cooperation Agreement, to be signed between the INGO and the Government of Myanmar and
submitted to the Ministry of National Planning and Economic Development;
• Project Proposal, which outlines the intended operations in Myanmar, including the scope of work,
regions for program implementation, objectives, activities and relevant personnel; and
• MOU, which details the line ministry which an INGO will report its activities to. The MOU also contains
other important details of the operations of the organization, such as income tax exemption requests
for employees, and more.
d. Liabilities
NGOs are treated as juristic persons under Myanmar laws,15 As such, they have the right to sue or be sued as an
organization, but the executive committee members will not be personally liable for the debts and obligations
of the organization. The position of INGOs however, is not clearly addressed under the current legislation.
e. Tax treatment
None of the Myanmar tax laws refer specifically to INGOs or NGOs, making the exact tax obligations and
requirements unclear. In practice, INGOs in Myanmar are eligible for tax exemption but they need to register
for tax reporting requirements with the Internal Revenue Department. According to the Income Tax Law 1974,
INGOs are not liable to pay any tax on income which is used for charitable purposes or social causes. The act also
provides that INGOs in Myanmar can attempt to negotiate general and personal income tax exemptions when
entering into MOUs with relevant government ministries, though in practice this may be difficult to achieve.
When tax agreements are made by Myanmar with other countries and international organizations, a notification
must be made pursuant to the Income Tax Law 1974, and the terms of such agreements shall be followed as
long as they do not conflict with any of the provisions under the law.
f. Ongoing governance and regulatory obligations
A registered organization must submit an annual report once per year to the relevant registration body. In
accordance with the Registration of Organizations Law 2014, NGOs and INGOs that fail to submit their annual
reports for five consecutive years will be regarded as inactive, and will need to apply for a new registration
certificate. Under the Association Registration Regulations 2015, NGOs and INGOs must also keep the
following records:16
• Accounting books of the income and expenses of the organization;
15. Section 28, Registration of Organizations Law 2014. 16. Rules 21 and 22, Registration of Organizations Rules 2015.
![Page 150: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/150.jpg)
150 ASEAN Social Enterprise Structuring Guide
• Funds, debt, bonds, stock share or debentures owned by the organization; and
• Moveable property and immovable property acquired or rented with funds of the organization.
The annual report and financial statements of social enterprises registered as INGOs and NGOs must also
be submitted to the relevant Registration Committee every December. INGOs and NGOs must renew their
registrations every five years. There are no renewal fees for NGOs, but INGOs have to pay a renewal fee of
MMK 100,000.
g. Corporate structure
An NGO or INGO is governed by its board or committee of executive members. The board or committee makes
all pertinent decisions on behalf of the organization, consistent with the approved activities.
Executive committee members of NGOs and INGOs must fulfil the following requirements:17
• For NGOs, they must be citizens, associate citizens,18 or naturalized persons;
• For INGOs, they must be foreigners or persons converted to foreign nationality, or Myanmar citizens;
• Be at least 18 years of age;
• Not a member of a religious order;
• Not currently serving imprisonment terms;
• Not of unsound mind;
• Not a member or person of organizations which are determined by the government as having
committed terrorist acts, a member of associations declared as unlawful under any law, or a member
of associations abetting such members.
h. Governance
The number of executive committee members to form the board of an NGO or INGO is recommended to be 10-
15 people. The curriculum vitae of the executive committee members must also be submitted to the relevant
registration board.
i. Finance & fundraising
INGOs and NGOs largely operate through funds garnered via grants and donations. NGOs are expressly
allowed to accept aid provided by the government, as well as collect donations in Myanmar.19
j. Resources
• “Registration of Business Associations,”
www.dica.gov.mm/en/step-by-step/registration-business-associations
17. Rules 5 and 10, Registration of Organizations Rules 2015.18. An “associate citizen” is a category of citizenship provided under the Citizenship Law 1982. 19. Chapter VIII, Registration of Organizations Law 2014.
![Page 151: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/151.jpg)
151 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 4 – COOPERATIVE SOCIETIES a. Overview
The cooperative option in Myanmar was introduced by the British colonial administration, and was subsequently
maintained by the Myanmar military government as a policy to address poverty issues. Today, this legal
structure remains as an alternative for local social entrepreneurs in Myanmar to register their social ventures
as a manufacturing, service, trading, or general “primary co-operative society” limited by shares under the
Cooperative Society Law 1992. Prior to the government reformation in 2016, the governance of co-operative
societies in Myanmar fell under the purview of the Ministry of Co-operatives. Today, all matters related to
co-operative societies in the country are under the control of the Co-operatives Department of the Ministry
of Agriculture, Livestock and Irrigation. Foreigners are not allowed to hold any shareholding in co-operative
societies.
b. Advantages & disadvantages
Advantages
√√ Separate legal entity. Liabilities of members are limited to the amount paid for their shares. Personal assets of shareholders are not at risk.
√√ Ability to raise finance. Co-operative societies can issue shares to raise capital.
Disadvantages
√: Future uncertainty. The future of co-operative societies appears to be bleak as the current government of Myanmar is more focused on reforming the country’s archaic company and investment laws. The dissolution of the Ministry of Co-operatives in 2016 resulted in departments under that ministry being transferred to several other government ministries, such as the Ministry of Agriculture, Livestock and Irrigation, where the Co-operatives Department today sits.
√: Lack of confidence amongst members of the trade and public. The governance of co-operative societies is said to be tarnished by blurred responsibilities, slow and ineffective management, and a general lack of transparency. This has resulted in a diminished level of credibility and trust by the people.
c. Establishment process, documentation & costs
Under the Cooperative Society Law 1992, a primary cooperative society may be formed with at least five
persons with the aim of collectively promoting the interests of its members.20 A “cooperative syndicate”
can also be formed with at least three primary cooperative societies.22 In addition, a “union of cooperative
syndicates” can further be formed from co-operative syndicates.22 A primary co-operative society must register
as a manufacturing, service, trading, or general co-operative society with the Cooperative Department. To do
this, the following documents must be furnished:
• One original and two copies of the application requesting permission to register to form a primary co-
operative society;
20. Section 6, Cooperative Society Law 1992.21. Section 7, Co-operative Society Law 1992. 22. Section 8, Co-operative Society Law 1992.
![Page 152: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/152.jpg)
152 ASEAN Social Enterprise Structuring Guide
• One original and two copies of the minutes of the general meeting held to form the primary co-
operative society; and
• One original and two copies of the articles of association of the primary co-operative society as agreed
and approved by the majority at the general meeting held to form the primary co-operative society.
The application dossier must be supported by the bylaws of the co-operative society, and must contain the
following details:23
• Name of the cooperative;
• Type of cooperative;
• Address;
• Sphere of business of the cooperative;
• Steps for application to be a member of the cooperative;
• Objectives of the cooperative;
• Business of the cooperative;
• Order of appropriation of the co-operative fund;
• Articles of association that members, member co-operatives or representatives of member co-
operatives have to abide by;
• Application screening criteria for members of the co-operative;
• Amount of shares to be subscribed by the members and member societies, and their obligations;
• Manner of cessation of membership, consistent with Section 13 of the Cooperative Society Law 1992;
• Liabilities and assets of the members and member societies;
• Manner of acquisition and formation of capital investment;
• Meetings of the executive committee, general meetings, and voting system;
• System for dividing net profits gained from the business of the cooperative;
• System for transferring shares and rights of the members and member societies;
• Obligations for compiling and maintaining accounts of the cooperative;
• Application form for permission to join as a member or member cooperative; and
• Any other applicable requirements.
The completed application dossier is submitted to the Co-operative Department. The department will
scrutinize the application dossiers and if all is in order, they will issue a registration number for the cooperative
society, approve the registered seal of the cooperative, the registered name of the cooperative, and the articles
of the cooperative society. The department will then require the cooperative to pay the registration fees to the
government fund. The current fees are MMK 10,000, and each registration is valid for two years.
23. Rule 7, Co-operative Societies Rules 2013.
![Page 153: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/153.jpg)
153 ASEAN Social Enterprise Structuring Guide
d. Liabilities
A member’s liability is limited to the amount of their investment in the co-operative society, i.e., the amount
paid for the subscribed shares. As such, when there are claims to be met in the event of liquidation of a co-
operative society, the liabilities of a member are limited only to the extent of their subscribed shares.24
e. Tax treatment
Currently, income tax for major cooperative societies, such as a “cooperative syndicate” or a “union of
cooperative syndicates” as mentioned above, is applied at a flat rate of 25 percent on net profits.25
However, the income tax for “primary cooperative societies” is assessed at a lesser progressive income tax rate
as determined by Union Taxation Law. The current rates are identical to the progressive personal income tax
rates detailed in paragraph (e) of the Sole Proprietorship and Partnership section above.26 percent
Co-operative societies are also required to submit annual tax returns like other business organizations to the
Internal Revenue Department within three months from the end of every financial year, i.e., three months from
March 31.
f. Ongoing Governance and Regulatory Obligations
Cooperative Societies are required to hold an annual general meeting within three months after the end of the
financial year. At the general meeting, the following functions may be carried out:27-
• Electing the member of the leading committee, the executive committee or board of directors;
• Determining the duties and powers of the member of the leading committee, the executive committee
or board of directors;
• Reviewing, discussing and deciding on the manpower report, annual financial statements and audited
report of financial statements;
• Deciding on other businesses;
• Administering the profits of the co-operative; and
• Determining future business programs.
The report submitted to the general meeting and the decision record of the general meeting is required to be
sent to the Cooperative Department.
The Co-operative Society Law requires all cooperative societies to compile and maintain necessary accounts,
inventories and other statements and records.28 The following statements shall be sent to Cooperative
Department:
• Statements of the amount and value of commodity production, service and trade of the co-operative
per year;
• Monthly, quarterly, semi-annual, third quarter and annual statements;
24. Section 15(e), Cooperative Society Law 1992. 25. Section 23(b), Union Taxation Law 2017. 26. Section 26, Union Taxation Law 2017.27. Rules 35 and 38(c), Cooperative Societies Rules 2013. 28. Section 17(f), Cooperative Society Law 1992.
![Page 154: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/154.jpg)
154 ASEAN Social Enterprise Structuring Guide
• Annual statements, commodity production, trade profit and loss account, and balance sheets for
each year.
The accounts of the cooperative society must be audited once every six months and the annual statements
must be audited at the end of each year.29 The audit reports must be sent to the Cooperative Department.
g. Corporate structure
Members of primary cooperative societies in Myanmar may set the cooperative’s overall business direction
at the general meeting by majority consent, and the executive committee (sometimes called the board of
directors) will implement the decisions made at the general meeting.
h. Governance
The general meeting is the highest organization of authority for a co-operative society and has the right to
decide on all co-operative matters. The executive committee reports to the general meeting and manage the
daily activities of the co-operative. The executive committee supervises the co-operative society based on the
resolutions of the general meeting.
i. Resources
• www.lift-fund.org/sites/lift-fund.org/files/publication/Consultancy-on-Cooperative-Systems_
English%20(Sept%202013).pdf
29. Rule 68, Cooperative Societies Rules 2013.
![Page 155: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/155.jpg)
155 ASEAN Social Enterprise Structuring Guide
HYBRID / MULTIPLE STRUCTURES A hybrid structure using a local partner is commonly adopted by foreign investors operating in Myanmar
to overcome the general restriction on trading activities imposed upon foreigners. Similarly, foreign social
enterprises with a trading component must organize their trading activities through cooperation with a local
partner. Hence, a hybrid structure often involves the formation of an INGO, or a foreign owned service company,
and the establishment of a working relationship with a 100 percent Myanmar-owned private company. The
citizen-owned private company will be tasked to carry out commercial activities. This protects the INGO or
service company’s assets from the inherent risks of conducting business activities prohibited to them.
Foreign social entrepreneurs wishing to launch their social ventures in Myanmar are highly encouraged to look
for an active local counterpart to work with. Where such social ventures involve the sale and distribution of
products, such business activities will have to be carried out by the local partner.
Foreign social entrepreneurs should be mindful that the appointment of a nominee is strictly prohibited under
local laws. Nominee investments are not recognized, and in the event of a dispute, the foreign principal, who
has no legal standing, will be left with no legal options.
TRANSITIONING BETWEEN LEGAL FORMSJust as there is currently no recognized primary social enterprise model in the Myanmar legal landscape, there
is also no recognized procedure for transitioning between legal forms. Under current practice, a registered or
incorporated business cannot transition from its existing legal structure to another legal structure.
A new application for a different legal form has to be filed separately. In other words, a registered NGO or INGO
cannot transform into a private company, or vice versa, under the current legal and regulatory framework in
Myanmar.
Moreover, it has not historically been possible for shares in a wholly Myanmar -owned company to be transferred
to foreigners, to effect a change in company form to become a foreign company. However, in early 2017, one
such transition was granted by DICA, although the exact practice for such transitions remains unclear.
![Page 156: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/156.jpg)
156 ASEAN Social Enterprise Structuring Guide
CASE STUDIESCase Study 1 Proximity Designs
A recipient of both the Skoll Foundation’s and the Schwab Foundation’s awards for social entrepreneurship,
the history of Proximity Designs dates back to 2004, when the husband-and-wife team of Jim Taylor and
Debbie Aung Din started the country office of International Development Enterprises (commonly referred to
as “iDE”), an international nonprofit organization which promotes a business approach to increasing income
and creating livelihood opportunities for poor rural households. The organization’s initial work focused on
creating affordable irrigation products for farmers.
After Cyclone Nargis in 2008, Proximity Designs started to diversify its line of services. Apart from designing
and manufacturing irrigation products, the organization created farm recovery services in response to crop
failures and pest infestations, formed infrastructure services to rebuild affected areas, provided agricultural
advice, and offered product financing and crop loans. In 2011, Proximity Designs started to spin off their crop
loans program into an entity called Proximity Finance.
A classic example of the use of a hybrid structure, Proximity Designs was registered as an INGO with a
Memorandum of Understanding executed with the Ministry of Agriculture and Irrigation. The product finance
and crop loan services are operated under a microfinance license granted by the Financial Regulatory
Department of the Ministry of Planning and Finance to Proximity Finance Company Limited, a service company
incorporated in 2016.
Case Study 2 – Yangon Bakehouse
Established in 2012, the Yangon Bakehouse is no stranger to food connoisseurs in Myanmar. The training café,
which now operates in two locations in Yangon, is self-identified as a non-profit social enterprise, and generates
funding through its cafes and catering services, as well as through corporate sponsors, employment partners,
and grant organizations. The Yangon Bakehouse conducts a 10-month training program for disadvantaged
women, who undergo training on culinary, English and other life skills. The Bakehouse operates under a
license from the Yangon City Development Council, and its café has also obtained SME registration.
Case Study 3 – Myanmar Business Executives Association
The Myanmar Business Executives Association (MBE) was started by a group of Yangon Institute of Economics
MBA alumni through the establishment of the Business Capacity Building Centre (BCBC) in May 2008. The
BCBC is registered as an educational training center with the Township Education Office, under the Ministry of
Education. Through the BCBC, young business executives and representatives of SMEs are provided training
in business, management and leadership skills.
Eventually, MBE was registered as an NGO in 2011, with an MOU executed with the Ministry of Social Welfare,
Relief and Resettlement. Today, the MBE has also extended its operations to the provision of microfinance,
such as housing loans, agriculture loans, livelihood loans, and hire purchase schemes.
![Page 157: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/157.jpg)
157 ASEAN Social Enterprise Structuring Guide
CONCLUDING REMARKSThe social enterprise sector in Myanmar is ripe and ready for growth. At this point, it is unknown whether
there will be changes to the country’s law to provide a specific legal structure for the social enterprise model
in the near future. The recently enacted Myanmar Companies Law 2017, which is not yet in force, provides an
overhaul to the current legal framework for corporate structures, but does not address the social enterprise
structures.
It is hoped that specific regulations will be issued to supplement the new Myanmar Companies Law 2017 to
bring structural clarity to the growing social enterprise sector in Myanmar. Until then, social entrepreneurs
wishing to initiate social ventures in Myanmar have various existing options to consider for their social mission.
In the long run, the dynamic impacts of social enterprises in Myanmar can help contribute to better public
policy and help strengthen the social enterprise ecosystem in the country.
![Page 158: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/158.jpg)
REUTERS/RICHARD CHUNG
158
philippines
![Page 159: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/159.jpg)
159 ASEAN Social Enterprise Structuring Guide
INTRODUCTION The Philippines is a populous country with an estimated 100.9 million citizens.1 Studies indicate that
26.3% of the population live below the poverty line and 12.1% live in extreme poverty (meaning their
earnings are not enough to buy three meals a day).2 It is estimated that the combined wealth of the
richest Filipinos comprises 76% of the country’s GDP while 30% of Filipino families live only on an
average of 3.67 USD a day.3
An emerging social response to this state of poverty is the vibrant growth of social enterprises.
Awareness is rising and the country is on the cusp of important policy changes that can lead to
social enterprises having a wider presence and impact in the coming years.
There is currently no legal definition of “Social Enterprise” in the Philippines. However, there is a
bill entitled Institutionalising the Poverty Reduction through Social Entrepreneurship Program and
Promoting Social Enterprises with the Poor as Primary Stakeholders (“PRESENT Bill”) pending in
Congress which defines “Social Enterprises” as “social mission-driven organizations that conduct
economic activities providing goods and/or services directly related to their primary mission of
improving the well-being of the poor, basic, and marginalized sectors and their living environment.”4
The social enterprise movement has been growing in the Philippines for the past several years.
In 1999, a group of Non-Governmental Organizations (“NGOs”) established the Philippine Social
Enterprise Network (“PhilSEN”) as a community to discuss and replicate the social enterprise
experience. The Ateneo de Manila University has a degree programme in social entrepreneurship
and the Institute for Social Entrepreneurship in Asia was established to invest in the pedagogy of
social enterprise. The Philippines also has a strong and well-established network of social enterprise
actors known as the Poverty Reduction Through Social Entrepreneurship Coalition.
A study published by the British Council and the PhilSEN in 2017 with support from the European
Union (“EU”) and the United Nations Economic and Social Commission for Asia and the Pacific
(“ESCAP”) found that there may be as many as 164,473 social enterprises operating in the Philippines
whose top objectives are to generate employment, alleviate poverty, improve local communities
and empower marginalised groups. They favour inclusion of the most vulnerable and marginalised
and provide a platform for voice and economic participation for those left behind.
philippines
1. Philippine Statistics Authority, Philippines in Figures 2017, available at http://psa.gov.ph/sites/default/files/PIF_2017.pdf [last accessed 23 November 2017].2. The Straits Times, Philippines is still poor: Philippine Daily Inquirer, 28 March 2016, available at http://www.straitstimes.com/asia/se-asia/philippines-is-
still-poor-philippine-daily-inquirer [last accessed: 23 November 2017]; See also Yap, DJ, “12M Filipinos Living In Extreme Poverty,” Philippine Daily Inquirer, 18 March 2016, available at http://newsinfo.inquirer.net/775062/12m-filipinos-living-in-extreme-poverty [last accessed: 23 November 2017].
3. British Council Philippines, A Review of Social Enterprise Activity in the Philippines, August 2015, available at https://www.britishcouncil.org/sites/default/files/social_enterprise_activity_philippines.pdf [last accessed: 24 November 2017].
4. Senate Bill No. 176 (2016), available at https://www.senate.gov.ph/lisdata/2359820226!.pdf [last accessed: 24 November 2017].
![Page 160: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/160.jpg)
160 ASEAN Social Enterprise Structuring Guide
Future Developments
The PRESENT bill, introduced by Senator Paolo Benigno A. Aquino IV, seeks to establish the state policy of
pursuing an inclusive growth strategy that promotes an environment conducive to the development and growth
of a vibrant social enterprise sector engaged in poverty reduction, and economic and social development.
The bill establishes a Social Enterprises Development Council as the primary agency tasked to carry out
the promotion, growth, and development of social enterprises in the country. A Social Development Fund is
likewise envisioned for inclusion in the annual budget of the Department of Trade and Industry (“DTI”) with
an initial amount of Nine Hundred Million Pesos (Php 900,000,000.00) to be granted to social enterprises to
accomplish the plans set forth under the PRESENT program.
In this paper, we shall discuss the different legal structures social enterprises may employ in setting up its
operations in the Philippines:
1. Sole Proprietorships
2. NGOs
3. Cooperative Societies
4. Corporations
a. Stock Corporations
b. Non-Stock Corporations
i. Foundations
![Page 161: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/161.jpg)
161 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 1 – SOLE PROPRIETORSHIPSa. Overview
One of the quickest ways to set up a social enterprise in the Philippines is through the establishment of a
sole proprietorship. A sole proprietorship is the simplest form of a business organization and is not subject
to the strict regulatory laws and rules imposed upon corporations and partnerships. A sole proprietorship is
essentially an individual person who operates a venture on his or her own which is generally small in scale
with few employees. Such an owner has full control and authority over the business, owns all the assets, and
is personally liable for business losses. The fact that absolute control over the business is held by one person
makes it highly flexible.
Government registration of a sole proprietorship business is simple and easy. This is accomplished by submitting
the necessary documents to the Bureau of Trade Regulation and Consumer Protection Department of the DTI.
a. Advantages and Disadvantages
Advantages
√√ Easy to set up and register.
√√ Requires minimal capitalization.
√√ Lower cost in registering for government permits and licenses.
√√ Minimal regulations and monitoring requirements.
√√ The owner can register and run the business on his/her own.
√√ The owner can enjoy the profits on his/her own.
Disadvantages
√: Business risk and liability are shouldered by the owner.
√: Loss is solely suffered by the owner.
√: The sole proprietor has unlimited liability. Creditors may proceed not only against the assets and property of the business, but also after the owner’s personal properties.(c) Establishment
Process, Documentation, and Costs
![Page 162: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/162.jpg)
162 ASEAN Social Enterprise Structuring Guide
The table below outlines the process, required documents, and administrative fees and costs involved in the
establishment of a sole proprietorship in the Philippines:
AGENCY / DURATION
PROCEDURE REQUIREMENTS ESTIMATED COST
DTI – 1-2 Days
Search for a business name (online search)
Register your business name using BTRCP Form No. 16A; list three names in your order of preference.5
Tax Identification Number (“TIN”)
List of three business names still available
Fee depends on the scope of your business:
1. National - Php2,000.00
2. Regional - Php1,000.00
3. City/Municipality - Php500.00
4. Barangay - Php200.00
Additional fee of Php15.00 for Documentary Stamps Tax (“DST”)
Barangay Office (where the business is located) – 2 Days
Obtain Barangay Clearance 6 Submit the completed Application Form with the following:
1. Certificate of business registration from DTI
2. Two valid forms of ID
3. Proof of address of the sole proprietor’s office such as a contract of lease if rented or original/transfer certificate of title (“OCT/TCT”) if owned
Mayor’s Office – 1 Day
Obtain mayoral permit to operate from the licensing section of the city or municipality
1. Completed application form
2. Certificate of business registration from DTI
3. Barangay Clearance Certificate
4. Two valid forms of ID
5. Proof of address of the sole proprietor’s office such as a contract of lease if rented or OCT/TCT if owned
The fees vary depending on the city/municipality issuing the mayor’s permit in accordance with its prevailing local ordinances.
Bureau of Internal Revenue (“BIR”) – Regional District Office (“RDO”) where the business is located
1. Fill out BIR Form 1901 – Application for Registration (for sole proprietor)
2. Submit completed registration form together with the requirements in the next table
3. Pay registration fee
4. Register books of account and receipts /invoices
1. Certificate of registration from DTI
2. Barangay clearance
3. Mayor’s business permit
4. Proof of address of the sole proprietor’s office such as a contract of lease if rented or OCT/TCT if owned
5. Valid ID
5. See Department of Trade and Industry, Business Name Application Form for Sole Proprietor, available at http://www.bnrs.dti.gov.ph/c/document_library/get_file?p_l_id=30949&folderId=31773&name=DLFE-2201.pdf [last accessed: 24 November 2017].
6. Section 152(c), Republic Act No. 7160.
![Page 163: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/163.jpg)
163 ASEAN Social Enterprise Structuring Guide
d. Liabilities
Unlike corporations, a sole proprietorship does not have a separate juridical personality that can shield its
individual owner from personal liability. The owner consequently has unlimited liability for business debts
and obligations. This characteristic makes sole proprietorships highly vulnerable to the potential liabilities
associated with high-risk industries.
e. Tax Treatment
The income of a sole proprietorship is treated as the personal income of its owner and must therefore be
included in his/her individual tax return. This personal income is taxed progressively in accordance with the
following rates:7
TAXABLE INCOME TAX RATE
Not over Php10,000 5%
Over Php10,000 but not over Php30,000 Php500 + 10% of the excess over Php10,000
Over Php30,000 but not over Php70,000 Php2,500+15% of the excess over Php30,000
Over Php70,000 but not over Php140,000 Php8,500+20% of the excess over Php70,000
Over Php140,000 but not over Php250,000 Php22,500+25% of the excess over Php140,000
Over Php250,000 but not over Php500,000 Php50,000+30% of the excess over Php250,000
Over Php500,000 Php125,000+34% of the excess over Php500,000
f. Governance and Regulatory Obligations
There are no particular governance and regulatory obligations imposed on sole proprietorships other than
the reporting of income and paying the corresponding income tax. The owners of social enterprises organized
as sole proprietorships will have full control over the operations of the business with no obligation to submit
formal records required by law. Nevertheless, it is good practice for sole proprietors to establish a proper
record-keeping system to document expenses and income for taxation and other purposes.
g. Corporate Structure and Governance
There are no required organizational structures for sole proprietorships. Business decisions are made at the
sole proprietor’s absolute discretion without any board of directors/trustees or other governing committee.
Social entrepreneurs can therefore wholly dedicate their time to building and operating the social enterprise.
There are no applicable statutory restrictions.
h. Finance and Funding
The funding of sole proprietorships is dependent on the financing scheme of its individual owner. The capital
of the business may be raised by infusion of the owner’s personal money and assets, the proceeds of a loan or
donation, or any other legal means employed to raise money.
i. Case Study
Healthy Sweets is a social enterprise producing fair trade and certified organic coconut sugar, candies and teas
located in Katipunan, Panabo City, Davao del Norte, Philippines. Healthy Sweets supports the efforts for the
economic upliftment of the small coconut farmers in the communities.
7. Section 24, Republic Act No. 8424 (“Tax Code”).
![Page 164: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/164.jpg)
164 ASEAN Social Enterprise Structuring Guide
Healthy Sweets was established in April 2009 as a family-run social enterprise. It has been providing green
jobs to small farmers through organic coconut farm production and to the women as coconut sugar processors.
From this venture, the coconut toppers were able to increase their income two-fold and even three-fold. They
were also able to employ women as processors. With the increased incomes, the once unemployed residents
could now provide good food for their family and finance the college education of their children.
Using coconut sugar does not only promote a healthy lifestyle but also contributes towards the greening of
the earth and mitigating the effects of climate change. Coconut trees provide alternative forest cover that last
for many years.
The enterprise was established as a sole proprietorship. In February 2016, Healthy Sweets was incorporated and
registered with the Securities and Exchange Commission (“SEC”) as Healthy Sweets Mindanao Corporation.
j. References
• An Act Providing For A Local Government Code of 1991 [LOCAL GOVERNMENT CODE], Republic Act
No. 7160 (1991)
• An Act Amending The National Internal Revenue Code, As Amended, And For Other Purposes [TAX
REFORM ACT OF 1997], Republic Act No. 8424 (1997)
• Department of Trade and Industry, Business Name Application Form for Sole Proprietor, available at http://
www.bnrs.dti.gov.ph/c/document_library/get_file?p_l_id=30949&folderId=31773&name=DLFE-2201.
pdf [last accessed: 24 November 2017]
• British Council Philippines, A Review of Social Enterprise Activity in the Philippines, August 2015,
available at https://www.britishcouncil.org/sites/default/files/social_enterprise_activity_philippines.
pdf [last accessed: 24 November 2017]
![Page 165: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/165.jpg)
165 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 2 – NGOSa. Overview
NGOs are non-profit organizations that are guided by philanthropic principles. They are usually dependent on
grants and donations from international development agencies, corporations, or other entities that allocate
a portion of their profits for social missions. Over time, NGOs have had to diversify their sources of income as
these traditional sources have significantly lessened.
Some NGOs engage in income generating activities such as providing training and facilitation, management
and organizational services, or by setting up profit-oriented companies. The focus of NGOs on their development
and sustainability have yielded new development initiatives including the emergence of social enterprises.8
PhilSEN, an NGO registered with the SEC, is the secretariat of the PRESENT Coalition which is currently
lobbying for the PRESENT Bill in Congress to promote social enterprises as vehicles for poverty reduction.
b. Advantages and Disadvantages
Advantages
√√ Fundraising capacity
√√ Flexibility
√√ Independence
√√ Availability of tax exemptions
√√ Enhancing the focus on social missions
Disadvantages
√: Long and unpredictable registration process
√: Fundraising pressures
√: Less accountability
√: Bureaucratic procedures
√: Dependency on financial sponsors
c. Establishment Process, Documentation, and Costs
Before establishing a social enterprise as an NGO, the owner should have a clear idea about (1) the purpose of
the NGO, (2) its intended beneficiaries, and (3) who will sit on its board of directors. An NGO needs to have at
least five but no more than fifteen directors, who must all be of legal age.
When the composition of the board of directors is finalized, it must hold an “Organizational Meeting” to
determine the vision and mission of the NGO, stating its primary goal, purpose, and core values. The NGO
8. Marife M. Ballesteros and Gilberto M. Llanto, “Strengthening Social Enterprises for Inclusive Growth: Philippines 6 (Discussion Paper Series No. 2017-04)”, citing Marie Lisa Dacanay, “Social Enterprise and The Poor: Transforming Wealth”, Quezon City: Institute for Social Entrepreneurship in Asia and Ateneo School of Governance (2013).
![Page 166: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/166.jpg)
166 ASEAN Social Enterprise Structuring Guide
should then prepare the minutes of the “Organizational Meeting” and thereafter register with the SEC by
submitting four copies of the following documents:
• Articles of incorporation
• By-laws – containing the rules and procedures for the meetings, election of officers, etc.
• Name verification slip
• Affidavit of undertaking to change the corporate name, in case the SEC receives notice that a confusingly
similar name has already been registered
• List of members including their respective dates of birth, addresses, and TIN
• List of donors/contributors
• Notarized bank deposit certification,9 and
• Statement of willingness to allow an audit.
An NGO must also procure an endorsement from the government agency relevant to its purpose. For instance,
charitable institutions must obtain an endorsement from the Department of Social Welfare and Development;
educational institutions from the Department of Education, the Commission on Higher Education, and/or the
Technical Education Skills and Development Authority; and hospitals from the Department of Health.10
d. Liabilities
NGOs have a separate juridical personality from its members and board of directors. As such, NGOs have the
right to sue or be sued as an organization and its members and board of directors are not personally liable for
the debts and obligations of the NGO.11
e. Tax Treatment
Under section 30 of the National Internal Revenue Code (“Tax Code”),12 organizations that are non-stock, non-
profit, and operated or organized exclusively for charitable purposes are generally granted tax exemptions.
However, this tax exemption does not extend to withholding tax, and all NGOs must file tax returns and remit
withholding taxes on all income payments that are subject to withholding tax.
An NGO can likewise qualify for a donee institution status which entitles it to tax incentives under the law. The
Philippine Council for NGO Certification (“PCNC”) accredits NGOs for this status, subject to the final approval
of the BIR. Donations to a donee institution are deductible from the donor’s taxable income and exempted
from donor’s tax.13
Only donations to accredited NGOs are tax deductible in full. Donations to non-accredited NGOs are tax
deductible up to 10% of an individual donor’s income and 5% of a corporate donor’s income.14
Registration under the Philippine Council for NGO Certification
9. Note the additional requirement of One Million Pesos (Php1,000,000.00) minimum capitalization applicable to foundations.10. NGO:PH, Establishment and Registration, available at http://ngoph.com/how-to-start-an-ngo/ [last accessed: 24 July 2017].11. Sections 19 and 36(1), Batas Pambansa Bilang 68 (“Corporation Code”).12. Republic Act No. 8424.13. Section 34(H)(2)(c), Tax Code.14. Id., at Section 34(H)(1).
![Page 167: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/167.jpg)
167 ASEAN Social Enterprise Structuring Guide
The PCNC is a private, voluntary, non-stock, non-profit corporation whose main function is to certify non-
profit organizations that meet established minimum criteria for financial management and accountability
in the service of underprivileged Filipinos. It aims to improve the effectiveness of Philippine Civil Society
Organizations by becoming more accountable, credible, and capable of providing services to those in need.15
Upon registration with the PCNC, a certified NGO will enjoy the following benefits:
• It shall be granted a “Seal of Good Housekeeping.” This is useful for the NGO to attract funding
agencies and partners to support and donate to its cause.
• Opportunities for self-assessment, improvement, and assistance with organizational strengthening.
• Donations to certified NGOs are exempt from donors’ tax and fully tax deductible on the part of
the donor. However, considering that a social enterprise engages in activities for profit, and profit
generation is one of its primary purposes, it cannot be accredited under the PCNC as a non-stock non-
profit organization, and thus cannot enjoy the benefits of having a donee institution status.
f. Governance and Corporate Structure
An NGO is governed by its board of directors. The board of directors makes all the corporate decisions on
behalf of the organization, consistent with its approved activities.16 The board of directors must be composed
of at least five but no more than 15 members.
g. Finance and Fundraising
NGOs usually operate through funds garnered from grants and donations.
h. Case Study
Sentro ha Pagpauswag ha Panginabuhi (SPPI or Center for Local Economy Development)17 provides financial
and training support for Samar’s rural poor.
SPPI’s vision is “[e]conomically and politically empowered men and women, unified by their spirituality
(pagpapakatao), in the rural communities of Samar Island.” Its mission is to “[a]dvance the rural communities
of Samar Island through local economy development, gender relations, participatory governance and
sustainable agricultural practices.”
All of SPPI’s programs are based upon the organization’s Five Pillars of Community-based Local Economy
Development:
• Strong Community Organizations – It is the collective capacity of the people who creates their own
development goals and guarantee the sustainability of the project.
• Participatory Development Governance – SPPI actively encourages communities to engage in local
governance to ensure transparency, accountability and equal representation.
• Livelihoods and Enterprise Development – SPPI identifies economic opportunities and facilitates
credit services that are affordable and reliable for the poorest of the poor.
15. PCNC, About Us, available at http://www.pcnc.com.ph/aboutus.php [last accessed: 23 November 2017].16. Section 23, Corporation Code.17. SPPI registered with the SEC as an NGO on September 17, 2007, with Registration No. CN200714633.
![Page 168: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/168.jpg)
168 ASEAN Social Enterprise Structuring Guide
• Mainstreaming Gender Perspective – By forming women’s committees, SPPI is empowering women to
have a voice in rural and local economic development.
• Ecological Sustainability – All of SPPI’s projects contribute to ecological sustainable development and
use natural resources with a long-term vision for building communities.
All of SPPI’s projects contribute to ecological sustainable development and use natural resources with a long-
term vision for building communities.
i. References
• The Corporation Code of the Philippines [CORPORATION CODE], Batas Pambansa Bilang 68 (1980)
• An Act Amending The National Internal Revenue Code, As Amended, And For Other Purposes [TAX
REFORM ACT OF 1997], Republic Act No. 8424 (1997)
• NGO:PH, Establishment and Registration, available at http://ngoph.com/how-to-start-an-ngo/ [last
accessed: 24 July 2017]
• Marife M. Ballesteros and Gilberto M. Llanto, “Strengthening Social Enterprises for Inclusive Growth:
Philippines 6 (Discussion Paper Series No. 2017-04)”, citing Marie Lisa Dacanay, “Social Enterprise and
The Poor: Transforming Wealth”, Quezon City: Institute for Social Entrepreneurship in Asia and Ateneo
School of Governance (2013)
![Page 169: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/169.jpg)
169 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 3 – COOPERATIVE SOCIETIESa. Overview
The Philippine Cooperative Act of 2008 (“Cooperative Code”)18 defines a cooperative as an “autonomous and
duly registered association of persons, with a common bond of interest, who have voluntarily joined together
to achieve their social, economic, and cultural needs and aspirations by making equitable contributions to the
capital required, patronizing their products and services and accepting a fair share of the risks and benefits of
the undertaking in accordance with universally accepted cooperative principles. Membership in a cooperative
is voluntary and available to all individuals regardless of their social, political, racial or religious background
or beliefs. The primary objective of every cooperative is to provide goods and services to its members and thus
enable them to attain increased income and savings, investments, productivity, and purchasing power, and
promote among them equitable distribution of net surplus through maximum utilization of economies of scale,
cost-sharing and risk-sharing without, however, conducting the affairs of the cooperative for eleemosynary or
charitable purposes.”19
As of December 31, 2014, there are a total of 24,652 registered cooperatives in the Philippines.20
b. Advantages and Disadvantages
Advantages
√√ Cooperatives that transact only with their members are not subject to any taxes and fees.
√√ Cooperatives are exempt from the following:
» Payment of local taxes and other taxes on its transactions with banks and insurance companies;21
» Payment of all court and sheriff’s fees payable to the State for any actions brought under the
Cooperative Code of the Philippines.22
» Putting up a bond for bringing an appeal against a decision of an inferior court or seeking to
set aside any third-party claim.23
√√ Any securities issued by cooperatives are exempt from the Securities Act.24
√√ Cooperatives doing business with the government are exempted from pre-qualification bidding
requirements.25
√√ Cooperatives may be entitled to free representation by the provincial or city fiscal office or the
Office of the Solicitor General, except when the adverse party is the State.26
18. Republic Act No. 9520.19. Article 7 as amended, Cooperative Code.20. Cooperative Development Authority, Statistics of as of December 31, 2014 available at http://www.cda.gov.ph/resources/updates/statistics/527-statistics-as-
of-december-31-2014 [last accessed July 24, 2017]. 21. Article 61(3) as amended, Cooperative Code.22. Id., at Article 61(6) as amended.23. Id., at Article 61(7) as amended.24. Id., at Article 61(8) as amended.25. Id., at Article 61(10) as amended.26. Id., at Article 61(11) as amended.
![Page 170: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/170.jpg)
170 ASEAN Social Enterprise Structuring Guide
√√ Cooperative members receive a patronage fund, a certain percentage of the cooperative’s net surplus, after a period of one year.
Disadvantages
√: Limited sources of capital.
√: Restricted assignment of share capital contribution or interest.
√: Limited share capital holdings.
√: Members who do not use the services of the cooperative are not entitled to a patronage fund but
only to interest on their capital invested in the cooperative.27
c. Establishment Process, Documentation, and Costs
The table below outlines the process, required documents and administrative fees, and costs involved in the
establishment of a cooperative in the Philippines:
DEPARTMENT / DURATION PROCEDURE REQUIREMENTS ESTIMATED COST
Cooperative Development Authority (“CDA”) Central Office – 1 Day
Reserve cooperative name Cooperative name request form
30 days: Php100.00
60 days: Php200.00
90 days: Php300.00
Prepare economic survey, articles of cooperation and by-laws; secure bond of accountable officers; execute treasurer’s affidavit
Sample documents are available on the CDA website
CDA Extension Office or CDA Field Office – 1 Day
Complete Pre-Membership Education Seminar (“PMES”)
No fees required
CDA Central Office or CDA Extension Office – 10 days for Field Validation4 hours for evaluation of documents
Registration 1. Economic survey, articles of cooperation, and by-laws duly notarized (4 copies);
2. Security bond of accountable officers;
3. Treasurer’s affidavit;
4. Approved cooperative name reservation slip;
5. Certificate of PMES
The initial registration fee shall be 1/10 of 1% of the paid-up capital or the basic fee below, whichever is higher:
Laboratory cooperatives –
Php50.00
Primary cooperatives –
Php500.00
Secondary cooperatives –
Php2000.00
Tertiary cooperatives – P3000.0028
27. Cooperative Development Authority, Basic Info on Cooperatives, available at http://www.cda.gov.ph/index.php/resources/downloads/other-information [last accessed July 21, 2017].
28. CDA Memorandum Circular No. 2016-08, Amended Schedule of Registration Fees (October 18, 2016).
![Page 171: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/171.jpg)
171 ASEAN Social Enterprise Structuring Guide
d. Liabilities
The Cooperative Code grants limited liability to a registered cooperative which means that its members shall
only liable for the debts and obligations of the cooperative to the extent of their individual contributions to the
shared capital.29
However, directors, officers and committee members of the cooperative shall become jointly and severally
liable for all damages to the cooperative, members, and other persons if they:30
1. willfully and knowingly vote for or assent to patently unlawful acts.
2. are found guilty of gross negligence or bad faith in directing the affairs of the cooperative; or
3. acquire any personal or pecuniary interest in conflict with their duty as such directors, officers
or committee members.
e. Tax treatment
Cooperatives which do not engage in any business with non-members or the general public shall not be
subject to any taxes and fees.31 Cooperatives doing business with both members and non-members shall be
subject to other rules, but transactions with members shall remain non-taxable.32
f. Governance and Regulatory Obligations
A cooperative must have an official postal address, and any changes to such address should be reported and
registered with the CDA immediately.33
Cooperatives must prepare and maintain the following reports:34
1. Cooperative Annual Performance Report (“CAPR”);
2. Social audit report, including its program of activities and achievements at the end of the fiscal
year;
3. Performance report;
4. Audited financial statements duly received by the BIR; and
5. List of officers and trainings undertaken/completed.
g. Corporate Structure
Cooperatives are democratic organizations and their affairs are administered by persons elected or appointed
in a manner agreed upon by the members. Members may either be regular or associate, with only regular
members having the right to vote.35
29. Article 29 as amended, Cooperative Code.30. Id., at Article 45 as amended.31. Id., at Article 60 as amended.32. See Article 61 as amended, Cooperative Code.33. Id., at Article 51 as amended.34. Section 2, Rule 8 of the Implementing Rules and Regulations of the Cooperative Code.35. Article 26 as amended, Cooperative Code.
![Page 172: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/172.jpg)
172 ASEAN Social Enterprise Structuring Guide
The general assembly is composed of only of members who are entitled to vote under the Articles of
Cooperation and By-laws.36
The board of directors is composed of at least five but no more than 15 directors, elected by the members.37
The board of directors is charged with the direction and management of the affairs of a cooperative. It is
responsible for the strategic planning, direction-setting, and policy-formulation activities of the cooperative.
Similar to a corporation, the board of directors elects officers of the cooperative or creates an executive
committee as provided under its by-laws.38
h. Governance
It is the policy of the state to foster the creation and growth of cooperatives as a practical vehicle for promoting
self-reliance, and harnessing people power, towards the attainment of economic development and social
justice.39 Membership in cooperatives is strictly for Filipinos. Foreigners are prohibited from becoming
members of a cooperative and serving as part its board of directors.
i. Finance and Fundraising
Cooperatives may derive their capital from any and all of the following sources:40
1. Members’ share capital;
2. Loans and borrowings including deposits;
3. Revolving capital which consists of the deferred payments of patronage refunds, or interest on
share capital; and
4. Subsidies, donations, legacies, grants, aids and such other assistance from any local or foreign
institution, whether public or private.
j. References
• An Act Amending The Cooperative Code of the Philippines Known as the “Philippine Cooperative Act
of 2008” [COOPERATIVE CODE OF THE PHILIPPINES], Republic Act No. 9520 (2009)
• Implementing Rules and Regulations of the Philippine Cooperative Code (2009)
• Amended Schedule of Registration , CDA Memorandum Circular No. 2016-08, (October 18, 2016)
• Cooperative Development Authority, Statistics of as of December 31, 2014 available at http://www.
cda.gov.ph/resources/updates/statistics/527-statistics-as-of-december-31-2014 [last accessed July
24, 2017]
• Cooperative Development Authority, Basic Info on Cooperatives, available at http://www.cda.gov.ph/
index.php/resources/downloads/other-information [last accessed July 21, 2017]
36. Id., at Article 32 as amended.37. Id., at Article 37 as amended.38. Id., at Article 43 as amended.39. Id., at Article 2 as amended.40. Article 72 as amended, Cooperative Code.
![Page 173: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/173.jpg)
173 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 4 – CORPORATIONSA corporation is an artificial being created by operation of law, having the right of succession and the powers, attributes,
and properties expressly authorized by law or incident to its existence.41 A corporation may either be a stock corporation or
non-stock corporation, depending on the existence of shares in its ownership structure.
A. STOCK CORPORATION
a. Overview
A stock corporation is a corporation with authorized capital stock divided into shares of stock either with or without par value.
A stock corporation is engaged in income-generating activities and is authorized to declare dividends.42
b. Advantages and Disadvantages
Advantages
√√ A corporation has a separate juridical personality from its stockholders enabling it to act independently, and
sue or be sued, in its own capacity.43
√√ Corporate succession allows the corporation to exist notwithstanding any change in its ownership or
leadership.44
√√ Owners are not personally liable for the debts and obligations the corporation may incur in the course of its business.
√√ Stockholders may dispose of and transfer their shares of stock at will, subject to requirements under the law
and the corporate by-laws.45
√√ Management or decision making is centralized with the board of directors.46
Disadvantages
√: Higher capital requirements and operating costs.
√: Double taxation. Both the income of the corporation and the dividends received by shareholders will be
subject to income tax.47
√: Higher tax rates.48
√: More legal regulation and reportorial requirements.
√: Incorporation is costly.
√: Difficult to dissolve.49
41. Section 2, Corporation Code.42. Section 3, Corporation Code.43. Id., at Sections 19 and 36(1).44. Id., at Section 36(2).45. Id., at Section 63.46. Id., at Section 23.47. Sections 24(B)(2) and 27, Tax Code.48. Id., at Section 27.49. See Sections 117-122, Corporation Code.
![Page 174: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/174.jpg)
174 ASEAN Social Enterprise Structuring Guide
c. Incorporation Process, Documentation, and Costs
The incorporation process with the SEC is as follows:50
SEC INCORPORATION PROCEDURESTEP / DURATION
APPLICANT / CLIENT
GUIDELINES FEES
STEP 1 – 10 minutes
Create an account online with the SEC company registration system (“CRS”)
Provide a valid email address to log-in and to which all registration communications will be sent.
None
STEP 2 – 5 minutes
Select application type There will be a dropdown list prompting the applicant to select the type of application from. Select “Primary Registration”.
None
STEP 3 – 10 minutes
Verify/reserve proposed company name51
If the proposed name is allowed by the system, click Validate and Add. An email notification will be sent on the approval or disapproval of the company name.
In case of disapproval, an appeal may be filed using CRS.
None
STEP 452 – 10 – 20 minutes
Add company details Fill-up the respective forms to generate the articles of incorporation or partnership, by-laws, and other company registration documents.
Confirm the inputted company details. A payment assessment will thereafter appear to inform applicant how much needs to be paid.
Download and print the system-generated articles of incorporation or partnership and by-laws and other requirements and confirm the registration summary.
None
STEP 5 – Within 30 days of confirming company details.
Upload incorporation documents
Upload the unsigned articles of incorporation or partnership and by-laws together with the other incorporation requirements (SEC forms for these are available at www.sec.gov.ph) under forms and fees.
Submit completed forms and wait for email notification providing for either the payment procedure or list of documents for compliance.
None
STEP 6 – 30 – 60 minutes
Pay the assessed fees Print the order of payment from the email payment advice.
Log-in to CRS, choose a payment method, and pay the prescribed fees and charges to any of the following:
1. Landbank ePayment2. Landbank on Collection 3. SEC Cashier/Over the Counter4. Point of Sales
Consolidated schedule of fees and charges is provided in SEC Memorandum Circular No. 3, series of 2017.
STEP 7 – 30 minutes
Upload proof of payment
Upload the official receipt/proof of payment with the signed and notarized articles of incorporation or partnership and by-laws and other documentary requirements.
An email notification will be sent advising when the original copies of the incorporation documents shall be submitted.
Notarization fee: approximately Php500.00
STEP 8 – 30 – 60 minutes
Submit the original incorporation documents
Upon receipt of email notification advising submission, submit the original and notarized articles of incorporation or partnership and by-laws and other incorporation documents with the Company Registration and Monitoring Department of the SEC.
None
STEP 9 – 60 – 180 minutes
Claim the Certificate of Registration
The original documents submitted will be verified. If found to be complete and in order, the following may be claimed on the same day:
1. Certificate of incorporation 2. Submitted documents3. Unified Registration Record (“URR”) bearing the employer’s
registration numbers issued by the SSS, Pag-IBIG, and PhilHealth, and company TIN issued by the BIR.
None
50. SEC, Primary Registration of Stock Corporations, available at http://www.sec.gov.ph/services-2/company-2/registration/primary-registration/stock-corporation-registration/ [last accessed: 25 November 2017]; See also SEC, Company Registration System, available at https://crs.sec.gov.ph/ [last accessed: 25 November 2017].
51. In accordance with SEC Memorandum Circular No. 21, series of 2013.52. Note that STEPS 1 and 2 need to be accomplished within four (4) days otherwise the application and reserved name will expire.
![Page 175: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/175.jpg)
175 ASEAN Social Enterprise Structuring Guide
The pre-registered TIN of the corporation is automatically generated by the SEC Head Office upon registration.
Nevertheless, the company must still register with the BIR to identify its applicable tax types, pay its annual
registration fee, and obtain its stamp sales invoices, receipts and books of account.
The following are the documentary requirements for incorporation:
Basic Requirements
1. Name verification slip (may be secured online or at SEC Name Verification Unit)
2. Articles of incorporation and by-laws
3. Treasurer’s affidavit stating that the deposit of the required minimum paid-in capital has been
made in the corporation’s treasurer in-trust account
4. Joint affidavit of two incorporators to change corporate name (not required if already stated in
articles of incorporation)
Additional Requirements
1. Endorsement/clearance from other government agencies, if applicable. For instance, the
following clearances are required for corporations governed by special laws:
a. Philippine Economic Zone Authority (“PEZA”) for applicants under R.A. 7916;
b. Subic Bay Metropolitan Authority (SBMA) or Clark Development Corporation (CDC) for
applicant under R.A. 7227;
c. Cagayan Economic Zone Authority (CEZA) for applicant under R.A. 7922.53
2. Clearance from other SEC departments, if applicable.54
3. For corporations with more than 40% foreign equity, an application form for registration under
the Foreign Investments Act of 199155
Additional requirements are necessary in cases where incorporators’ subscription payments are made through
non-cash assets.56
53. SEC, Documentary Requirements for Stock Corporation: Cash Payment for Subscription, available at http://www.sec.gov.ph/services-2/company-2/registration/primary-registration/stock-corporation-registration/ [last accessed: 24 November 2017].
54. SEC, Businesses Requiring Endorsements From Other Departments of the Commission/Other Government Agencies, available at http://www.sec.gov.ph/wp-content/uploads/2015/01/Endorsement-Clearance.pdf [last accessed: 24 November 2017].
55. Republic Act No. 7042, as amended.56. See SEC, Documentary Requirements for Stock Corporation: Non Cash Payment for Subscription, available at http://www.sec.gov.ph/wp-content/
uploads/2015/01/Doc_Reqts_Stock_Non_Cash1.pdf [last accessed: 24 November 2017].
![Page 176: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/176.jpg)
176 ASEAN Social Enterprise Structuring Guide
In addition to SEC registration, the following requirements from other government agencies and local
government units must be procured:
AGENCY / DURATION
ACTIVITY GUIDELINES FEES
Barangay office – 1 Day
Obtain barangay clearance Documentary requirements for barangay clearance: 1. Application form
2. SEC certificate of incorporation
3. Approved articles of incorporation and by-laws
4. Location plan/site map
5. Contract of lease or OCT/TCT covering the corporation’s office.
Barangay fees vary since each barangay has discretion to impose their own fees and charges, provided these fees are reasonable and within the limits set by the Local Government Code and City Ordinances.
Approximately Php300.00 – Php1000.00
City treasurer’s office – 1 Day
Pay the annual community tax and obtain a community tax certificate
A basic and additional community tax is payable based on an assessment of the company.
The basic community tax rate depends on whether the company is a corporation, partnership, or association (Php500.00 or lower).The additional community tax (not to exceed Php 10,000.00) depends on:
1. the assessed value of the real property the company owns in the Philippines at the rate of Php2.00 for every Php5,000.00; and
2. its gross receipts, including dividends or earnings, derived from business activities in the Philippines during the preceding year, at the rate of Php2.00 for every Php 5,000.00.
Business Permits and Licensing Office – 6 Days
Obtain a Business Permit to Operate
Barangay clearance is a prerequisite for issuance of a Business Permit to Operate.
The fees vary depending on the LGU issuing the permit. Other permits, such as location clearance, fire safety and inspection certificate, sanitary permit, certificate of electrical inspection, mechanical permit, and others may also be required depending on the nature of the business.
The rate of these fees depends on the nature of business and land area occupied by the proposed corporation.
![Page 177: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/177.jpg)
177 ASEAN Social Enterprise Structuring Guide
BIR – 1 day Apply for a Certificate of Registration (“COR”) and TIN from the BIR.
After the taxpayer obtains the TIN, the company must pay the annual registration fee of Php500.00 at any duly accredited bank, using payment form BIR Form 0605.57
All newly formed corporations subject to SEC registration are issued pre-generated TIN by SEC-Head Office, which is indicated on their SEC certificate of registration. The corporation only has to register its pre-generated TIN with the BIR and report all internal revenue taxes that it expects to be liable for.
A COR application must be accompanied by:
1. Completed BIR Form No. 1903 (Application for Registration for Corporations);
2. Payment form (BIR Form No. 0605);
3. SEC certification of incorporation;
4. Articles of incorporation and by-laws;
5. Contract of lease (with BIR Form No. 2000 and supporting BIR payment form as proof of payment of documentary stamp tax on the lease agreement);
6. DST return (BIR Form No. 2000) on the original issuance of shares and payment form (for the DST payment); and
7. Mayor’s permit/business permit application (duly stamped received by the Business Licensing Division of the local government).
BIR – 1 day Pay the registration fee and Documentary Stamp Tax at the AAB
The rate of DST on original issuance of shares of stock shall be Php1.00 for every Php200.00 or fractional part thereof, of the par value, of such shares of stock.58
The DST return shall be filed and the tax paid on or before the fifth (5th) day after the close of the month of approval of SEC registration.
Registration fee (Php500.00) + DST on original issuance of shares of stock.
DST on the lease contract is not included in the computation of the costs of incorporation.
BIR – 1 day Obtain authority to print receipts and invoices59
To obtain authority to print receipts and invoices from the BIR, the company must submit the following documents to the Revenue District Office (“RDO”):
1. Duly completed application for authority to print receipts and invoices (BIR Form No. 1906);
2. Job order;
3. Final and clear sample of receipts and invoices (machine-printed)
4. Application for registration (BIR Form No. 1903); and
5. Proof of payment of annual registration fee (BIR Form No. 0605).
None
BIR – 7 days for printing 1 day for stamping
Print receipts and invoices at the print shop
Procure books of accounts and printer’s certificate of delivery (“PCD”) stamped by the BIR60
After printing the receipts and invoices, the printer issues a PCD to the company, which must submit it to the appropriate BIR RDO (i.e., the RDO with jurisdiction over the company’s principal place of business) within 30 days for registration and stamping.
The company must also submit a copy of the PCD to the BIR RDO with jurisdiction over the printer’s principal place of business.
None
SSS PhilHealth Pag-IBIG SSS – 1 day Philhealth and Pag-IBIG – 1 day
Register the corporation and its employees with the SSS, Philhealth, and Pag-IBIG.
Although the SEC Registration generates the employer’s registration numbers with the SSS, PhilHealth, and Pag-IBIG, the company must still go to these agencies and fill in the necessary forms to complete its records and register its employees.
Applicable fees as imposed by SSS, PhilHealth, and Pag-IBIG.
57. Section 236(B), Tax Code.58. Section 175, Tax Code.59. Id., at Section 238.60. Section 232, Tax Code.
![Page 178: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/178.jpg)
178 ASEAN Social Enterprise Structuring Guide
d. Liabilities
The corporation, as a separate juridical entity, is primarily liable for corporate debts and obligations.
Stockholders are liable only to the extent of their respective investments in the capital of the corporation.
Officers are generally also not liable for acting as mere agents and representatives of the corporation.62
e. Tax Treatment
Corporations are taxed differently from individuals (and sole proprietorships). The tax treatment of
corporations depends on whether it is a domestic corporation, resident foreign corporation, or non-resident
foreign corporation. The following are the differences in tax treatment for the three types of corporations:
DOMESTIC CORPORATION
RESIDENT FOREIGN CORPORATION
NON-RESIDENT FOREIGN CORPORATION
Sources of Income Taxed on income from sources within and without the Philippines63
Taxed only on income from sources within the Philippines64
Taxed only on income from sources within the Philippines65
Tax Rate 30%66 30%67 30%68
Special Tax Rate May choose to be taxed based on its gross income at a rate of 15%, subject to the conditions under section 27(A) of the Tax Code.
Subject to minimum Corporate Income Tax of 2% of gross income.69
May choose to be taxed based on its gross income at a rate of 15%, subject to the conditions under section 27(A) of the Tax Code.
Subject to minimum Corporate Income Tax of 2% of gross income.70
No option of being taxed based on gross income.
Further, there are certain types of passive income which are subject to tax, depending on the source and which
corporations are taxed.
f. Prevailing Regulations and Reportorial Requirements
Reportorial Requirements
The SEC imposes the following reportorial requirements on both registered stock and non-stock corporations:71
DOCUMENT TYPE DESCRIPTION DEADLINE
General information sheet (“GIS”) GIS must be certified and sworn to by the corporate secretary.
Within 30 calendar days from the actual date of the annual stockholders’ meeting
Annual financial statement (“AFS”) AFS must be stamped “RECEIVED” by the BIR. There is no prescribed format.
Within 120 calendar days after the end of the fiscal year, as indicated in the financial statements
61. Sections 19 and 36(1), Corporation Code.62. Id., at Section 31.63. Section 23(E) and 27, Tax Code.64. Id., at Section 23(F) and 28(A).65. Id., at Section 23(F) and 28(B).66. Id., at Section 27.67. Id., at Section 28(A).68. Id., at Section 28(B).69. Section 27(E), Tax Code.70. Id., at Section 28(A)(2).71. See SEC Citizens Manual on Reportorial Requirements, available at http://www.sec.gov.ph/wp-content/uploads/2015/10/Citizens-Manual-on-Reportorial-
Requirements.pdf [last accessed: 24 November 2017].
![Page 179: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/179.jpg)
179 ASEAN Social Enterprise Structuring Guide
g. Governance and Corporate Structure
Corporations have centralized management, which means that all business decisions are made by the board
of directors. The Corporation Code expressly provides the general rule that the corporate powers and business
of all corporations shall be held and conducted by the board of directors.72
The stockholders as owners of the corporation elect the board of directors, with each stockholder entitled to
vote, in person or by proxy, proportionate to the number of shares outstanding in the books of the corporation
at the time fixed in the by-laws, or, if silent, at the time of the election.73 Further, each director must own at
least one share of stock of the corporation and not be otherwise disqualified by law.74
It should also be noted that there are some corporate actions that require the affirmative votes of both
stockholders and directors, voting separately, as expressly provided under the Corporation Code.
h. Finance and Fundraising
A corporation’s initial capital is raised through stockholders’ investment of cash or property in exchange for
shares of stock of the corporation.75 The corporation may opt to sell its shares of stock to public by becoming
publicly-listed or through the conduct of an initial public offering. Investment from stockholders is encouraged
by the possibility of earning dividends and the limited liability feature of the corporation.
i. References
• The Corporation Code of the Philippines [CORPORATION CODE], Batas Pambansa Bilang 68 (1980)
• An Act Amending The National Internal Revenue Code, As Amended, And For Other Purposes [TAX
REFORM ACT OF 1997], Republic Act No. 8424 (1997)
• An Act To Promote Foreign Investments, Prescribe The Procedures For Registering Enterprises
Doing Business In The Philippines, And For Other Purposes [FOREIGN INVESTMENTS ACT OF 1991],
Republic Act No. 7042 (1991)
• SEC Memorandum Circular No. 21, series of 2013
• SEC Memorandum Circular No. 3, series of 2017
• Securities and Exchange Commission
» Citizens Manual on Reportorial Requirements, available at http://www.sec.gov.ph/wp-content/
uploads/2015/10/Citizens-Manual-on-Reportorial-Requirements.pdf [last accessed: 24
November 2017]
» Primary Registration of Stock Corporations, available at http://www.sec.gov.ph/services-2/
company-2/registration/primary-registration/stock-corporation-registration/ [last accessed: 25
November 2017]
» Company Registration System, available at https://crs.sec.gov.ph/ [last accessed: 25
November 2017].
72. Section 23, Corporation Code.73. Id., at Section 24.74. Id., at Sections 24 and 27.75. Id., at Section 62.
![Page 180: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/180.jpg)
180 ASEAN Social Enterprise Structuring Guide
» Documentary Requirements for Stock Corporation: Cash Payment for Subscription,
available at http://www.sec.gov.ph/services-2/company-2/registration/primary-registration/
stock-corporation-registration/ [last accessed: 24 November 2017]
» Businesses Requiring Endorsements From Other Departments of the Commission/Other
Government Agencies, available at http://www.sec.gov.ph/wp-content/uploads/2015/01/
Endorsement-Clearance.pdf [last accessed: 24 November 2017]
» Documentary Requirements for Stock Corporation: Non Cash Payment for Subscription, available
at http://www.sec.gov.ph/wp-content/uploads/2015/01/Doc_Reqts_Stock_Non_Cash1.pdf [last
accessed: 24 November 2017]
B. NON-STOCK CORPORATION
a. Overview
A non-stock corporation is a corporation with no authorized capital stock and where no part of its income
is distributable as dividends to its members, trustees, or officers.76 It is organized for charitable, religious,
educational, professional, cultural, fraternal, literary, scientific, social civil service, or similar purposes, like
trade, industry, agricultural and like chambers, or any combinations thereof.77
Thus, for a corporation to be considered a non-stock corporation, it is required that (1) its primary purpose is
eleemosynary in nature, and (2) there is a prohibition in its articles of incorporation and by-laws that no part
of its income is distributable through dividends or in any form to its members, trustees, and officers. The
only way assets and/or profits of the non-stock corporation will be distributed to its members is when the
corporation is thereafter dissolved.78
The provisions of the Corporation Code applicable to stock corporations shall generally apply suppletorily to
non-stock corporations. However, when there are more specific rules governing non-stock corporations, such
specific rules shall prevail.79
b. Advantages and Disadvantages
Advantages
√√ Income tax exemption of certain non-stock corporations.80
√√ Foreigners may generally be members, officers, or trustees of non-stock corporations.81
√√ Juridical entities may be members of non-stock corporations.
√√ Unlike stock corporations, there is no need to file a formal application with the SEC to reflect an increase in the contributed capital.
√√ Unlike stock corporations, there is no need to have the SEC approve its promulgated rules and regulations.
76. Section 87, Corporation Code.77. Id., at Section 88.78. Section 87 in relation to Sections 94 and 95, Corporation Code.79. Id., at Section 87.80. Section 30, Tax Code.81. Subject to the limitations of the Anti-Dummy Law (Commonwealth Act No. 108, as amended) in cases where the non-stock corporation is engaged in
nationalized activities.
![Page 181: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/181.jpg)
181 ASEAN Social Enterprise Structuring Guide
Disadvantages
√: Membership is usually personal and non-transferable, unless provided otherwise in the articles
of incorporation or by-laws.82
√: Generally not empowered to engage in business for profit, except when necessary to carry out the eleemosynary purposes for which it was organized.(
c. Establishment Process, Documentation, and Costs
The incorporation procedure for non-stock corporations with the SEC is as follows:83
DURATION REQUIREMENT PROCEDURE FEES
10 minutes Verify or reserve proposed name
If the proposed name is allowed by the system, a reservation and confirmation notice is printed and given to the applicant.
Php100.00 reservation fee for 30 days
10-20 minutes Present articles of incorporation and by-laws at GLU
SEC will verify completeness of documentary requirements. If complete, the applicant will be required to pay the filing fee.
Php2,020.00 Registration fee for the articles of incorporation and by-laws
5 minutes Pay filing fee at the cashier and file application form with the receiving unit
After receipt of application, the company registration and monitoring department (“CRMD”) of the SEC will generate the certificate of incorporation bearing the applicant’s SEC registration number and URR.
None
5 minutes Present official receipt to releasing unit for the release of the certificate of incorporation
The assistant director of the CRMD will review the application and forward it for approval of the Director.
None
This procedure requires the following documents:84
Basic Requirements
1. Name verification slip
2. Articles of incorporation and by-laws
3. Joint affidavit of two incorporators to change corporate name (not required if already stated in
articles of incorporation)
4. List of members certified by the corporate secretary, unless already stated in the articles of
incorporation
5. List of the names of contributors or donors, and the amounts contributed or donated by
each, certified by the treasurer. There is no fixed amount of contribution required but only
such reasonable amount as the incorporators and trustees may deem sufficient to enable the
corporation to start operation, except in the case of foundations which must have a minimum
contribution of at least one million pesos (Php1,000,000.00)
82. Section 90, Corporation Code.83. SEC, Primary Registration of Non-Stock Corporations, available at http://www.sec.gov.ph/services-2/company-2/registration/primary-registration/non-
stock-corporation-registration/ [last accessed: 23 November 2017].84. SEC, Documentary Requirements for Non-Stock Corporation, available at http://www.sec.gov.ph/wp-content/uploads/2015/01/Doc_Reqts_NonStock.pdf
[last accessed: 23 November 2017].
![Page 182: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/182.jpg)
182 ASEAN Social Enterprise Structuring Guide
Additional Requirements (When Applicable)
1. Endorsement/clearance from other government agencies, if applicable.
2. For foundations: notarized certificate of bank deposit of the contribution which shall not be less
than One Million Pesos (Php1,000,000.00) and statement of willingness to allow the SEC to
conduct an audit.
3. For religious corporations: additional requirements under sections 109-116 of the Corporation
Code, and an affidavit of affirmation or verification by the chief priest, rabbi, minister or presiding
elder.
4. For federations: certified list of member-associations by corporate secretary or president.
5. For condominium corporations/associations: master deed and declaration of restrictions with
primary entry of the register of deeds, and certification that there is no other existing similar
condominium association within the condominium project.
d. Liabilities
The provisions on limited liability of stock corporations discussed above are likewise applicable to non-stock
corporations. A non-stock corporation has a separate juridical personality and can therefore sue and be sued
in its own capacity.85
e. Tax treatment
Generally, the income of non-stock corporations is taxed the same way as stock corporations. However, some
non-stock, non-profit corporations enjoy tax exemptions such as those covered under section 30(e) of the Tax
Code which provides:
“Non-stock corporation or association organized and operated exclusively for religious, charitable,
scientific, athletic, or cultural purposes, or for the rehabilitation of veterans, no part of its net income or
asset shall belong to or inures to the benefit of any member, organizer, officer or any specified person.”
The guidelines for the application for and processing of tax exemption rulings to qualified non-stock, non-profit
corporations and associations under section 30 of the Tax Code are set forth in BIR Revenue Memorandum
Order No. 20-2013.86
f. Prevailing Regulations and Reportorial Requirements
The SEC imposes the same minimum reportorial requirements on non-stock corporations as it imposes on
stock corporations, discussed above. Hence, non-stock corporations must also submit an annual GIS and AFS.
However, as will be discussed in more detail below, foundations notably have additional reportorial
requirements.
85. Section 36, Corporation Code.86. It should be noted that only non-stock, non-profit educational institutions are exempted from complying with the requirements under BIR Revenue
Memorandum Order No. 20-2013 by virtue of the Supreme Court ruling in Henares vs. St. Paul College of Makati, G.R. No. 215383 (2017).
![Page 183: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/183.jpg)
183 ASEAN Social Enterprise Structuring Guide
g. Corporate Structure
Participation in non-stock, non-profit corporations is mainly for eleemosynary purposes. Membership is
therefore purely personal in character and may be terminated for causes stated in the articles of incorporation
and by-laws.87
h. Governance
Non-stock corporations are governed by a board of trustees elected via straight voting of all its members.
Cumulative voting may apply when permitted under the articles of incorporation or by-laws. Officers of a
non-stock corporation may be directly elected by the members, unless otherwise provided in the articles of
incorporation or the by-laws.88
Juridical persons may be members of the board of trustees. Foreigners may also be members or officers of a
non-stock corporation, except for the position of corporate secretary.
A non-stock corporation may adopt rules and regulations without SEC approval, provided they are not contrary
to law, or its articles of incorporation and by-laws.
i. Finance and Fundraising
Aside from the amounts covering subscription to membership rights, a non-stock corporation may collect
membership dues. The manner of assessment and collection should be in accordance with the articles of
incorporation and by-laws. In the absence of such provisions, the corporation may still collect membership
dues but only when it is reasonable and only for purposes of accomplishing the purposes or objectives for
which he corporation was organized.
A non-stock corporation may also engage in fundraising activities, but only if it is necessary to carry out the
purposes for which it was organized. Such fundraising activities may be conducted provided the pertinent
laws and administrative regulations applicable to such activity, if any, are complied with.
Capital contributions may be increased by the non-stock corporation without the express approval of the SEC.
It is sufficient that the AFS submitted by the non-stock corporation accurately reflects the same.
j. Case Study
Hybrid Social Solutions Inc. (“HSSi”) is a social business which partners with villagers who have no access to
electricity in order to harness the sun to climb out of poverty. It operates in rural municipalities nationwide
through “Solar Hubs” which distribute and service innovative solar-powered solutions that improve quality of
life, livelihood, and access to social services.
HSSi is a line of solar home appliances that enable users to harness the power of the sun to meet their
everyday needs, such as lamps, lights, mobile phone chargers, power boxes and other low-power DC home
devices - each manufactured from durable materials to ensure long-term use.
Its mission is to provide all communities with continuous access to high-quality goods and services for basic
development by building “hybrid value chains” with like-minded partners.
87. Sections 90 and 91, Corporation Code.88. Id., at Section 92.
![Page 184: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/184.jpg)
184 ASEAN Social Enterprise Structuring Guide
Its vision is to end poverty and spur development by enabling all communities to access basic development-
oriented goods and services.
HSSi also created the Solary Energy Foundation Network for Rural Development, in partnership with
SunTransfer, which allows its member organizations in Kenya, Ethiopia, and the Philippines to negotiate with
suppliers and obtain exclusive distribution rights for certain products, allowing it to reduce prices.
HSSi’s livelihood applications have been found to increase the household cash flow of its customers by 25%,
while dramatically improving health and safety conditions by eliminating kerosene fumes, fires and accidental
ingestion.
k. References
• The Corporation Code of the Philippines [CORPORATION CODE], Batas Pambansa Bilang 68 (1980)
• An Act Amending The National Internal Revenue Code, As Amended, And For Other Purposes [TAX
REFORM ACT OF 1997], Republic Act No. 8424 (1997)
• Henares vs. St. Paul College of Makati, G.R. No. 215383 (2017)
• Securities and Exchange Commission
» Primary Registration of Non-Stock Corporations, available at http://www.sec.gov.ph/
services-2/company-2/registration/primary-registration/non-stock-corporation-registration/
[last accessed: 23 November 2017]
» Documentary Requirements for Non-Stock Corporation, available at http://www.sec.gov.ph/
wp-content/uploads/2015/01/Doc_Reqts_NonStock.pdf [last accessed: 23 November 2017]
» Reportorial Requirements for Corporations with Primary Licenses, available at http://www.sec.
gov.ph/reportorial-requirements/corporations-with-primary-licenses-2/ [last accessed: 24
July 2017]
• World Bank, Starting a Business in the Philippines, available at http://www.doingbusiness.org/data/
exploreeconomies/philippines/starting-a-business [last accessed: 24 July 2017]i.
![Page 185: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/185.jpg)
185 ASEAN Social Enterprise Structuring Guide
FOUNDATIONSa. Overview
An SEC-registered “foundation” is a non-stock, non-profit corporation established for the purpose of extending
grants or endowments to support its goals, or raising funds to accomplish charitable, religious, educational,
athletic, cultural, literary, scientific, social welfare, or other similar objectives.89
Currently, there are foundations in the Philippines which support social enterprises. For example, the
Foundation for a Sustainable Society (“FSSI”) is a social investment organization committed to providing
financial services and grants, support enhancements for entrepreneurial capacities, and policy support to
social enterprises.90 FSSI is not a social enterprise itself but it contributes directly to the development of other
social enterprises. It has a social enterprise fund to invest in social enterprises, provide trainings for them, and
lobby for their advocacies to government on their behalf.91
Another notable example is the Gawad Kalinga Community Development Foundation, Inc. (“GK”), a
Philippine-based movement that aims to end poverty for 5 million families. GK’s work began as early as 1994
in its efforts to alleviate the poor conditions in Bagong Silang, Caloocan City, one of the biggest relocation sites
of informal settlers in Metro Manila. GK was formally established in 2003 and has since expanded its work to
over 2,000 organized communities. The GK practice has in fact been adopted in other developing nations like
Cambodia, Indonesia and Papua New Guinea. GK is also currently at the forefront of peace-building initiatives
in conflict areas in Mindanao and reconstruction work in post-disaster areas.92
b. Advantages and Disadvantages
Advantages
√√ Tax exempt93
√√ Donations, contributions and gifts to foundations are deductible expenses for the donor94
√√ Minimum contributed capital is only Php1,000,000.0095
Disadvantages
√: Administrative expenses should not exceed 30% of the total expenses96
√: In the event of dissolution, its net assets should be distributed to another non-profit corporation
organized for similar purposes, or to the State.97
√: Greater reportorial obligations to the BIR compared to regular non-stock corporations.
√: Prohibition on distributing profits to members.98
√: Heavily dependent on donations, contributions and/or gifts.
89. Section 1, SEC Memorandum Circular No. 8, series of 2006 (“SEC MC No. 8”). 90. FSSI, How We Help, available at http://www.fssi.com.ph/what-we-do/how-we-help/ [last accessed: 23 November 2017].91. FSSI, About the Organization, available at https://www.choosesocial.ph/organization/foundation-for-a-sustainable-society-fssi [last accessed: July 24, 2017].92. Gawad Kalinga Foundation, Who We Are, available at http://www.gk1world.com/our-journey [last accessed: 24 July 2017].93. Section 30, Tax Code.94. Id., at Section 34(H).95. Section 2, SEC MC No. 8.96. Section 34(H), Tax Code.97. Sections 94 and 95, Corporation Code.98. Id., at Section 87.
![Page 186: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/186.jpg)
186 ASEAN Social Enterprise Structuring Guide
c. Establishment Process, Documentation, and Costs
The registration process for foundations is the same as non-stock corporations. However, it should be noted
that it is mandatory a foundation to include the word “Foundation” in its corporate name.99
In addition to registration requirement imposed on non-stock corporations as discussed above, the SEC
provides the following requirements for foundations:
1. Notarized Certificate of Bank Deposit of the amount of not less than One Million Pesos
(Php1,000,000.00) and;
2. Statement of willingness to allow the SEC to conduct an audit.100
d. Liabilities
The provisions on limited liability of stock and non-stock corporations discussed above are likewise applicable
to foundations. A foundation has a separate juridical personality and can therefore sue and be sued in its own
capacity.101
e. Tax Treatment
Foundations enjoy tax-exempt status under section 30 of the Tax Code in accordance with the same conditions
discussed above.
Further, donors enjoy tax privileges when giving donations, contributions and/or gifts to qualified foundations.
According to the Tax Code, contributions and gifts made to foundations may be deductible in full by the donor
from his taxable gross income.102 This tax feature serves as a great motivation for more donors to extend aid
to foundations to accomplish their laudable advocacies.
For donations to a foundation to qualify for full tax-deduction, BIR-NEDA Regulations No. 1-81 requires donee
foundations to file a sworn statement with the government and Tax Exempt Corporation Division of the BIR
indicating (1) the character of the foundation; (2) the purpose for which it is organized; (3) its actual activities;
(4) the sources of income and its dispositions; and (5) other facts relating to their operations which are relevant
to their qualification as donee institutions.
f. Governance and Regulatory Obligations
In addition to the GIS and AFS, foundations are required to submit the following:
1. A sworn statement by its president and treasurer on the following information relating to the
preceding fiscal year:
a. Source and amount of funds;
b. Program/activity planned, ongoing and accomplished:
i. Corporate name, address and contact number of the project officer-in-charge;
ii. Complete address and contact number of project office; and
99. Section 3, SEC MC No. 8.100. Section 2, SEC MC No. 8.101. Section 36, Corporation Code.102. Section 34(H)(2)(c), Tax Code.
![Page 187: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/187.jpg)
187 ASEAN Social Enterprise Structuring Guide
c. Application of funds.103
2. Certification from the office of the mayor, the office of the barangay captain, or the head of either
the Department of Social Welfare and Development or Department of Health, on the existence
of the subject project/activity in the locality over which it exercises jurisdiction.104
BIR Reportorial Requirements
A. A Tax Exemption Ruling
is valid for a period of three years. For a foundation to maintain its status as a tax-exempt
entity, it should file a subsequent application for tax exemption/revalidation, under the same
requirements and procedures provided in BIR Revenue Memorandum Order No. 20-2013.
Otherwise, the exemption shall be deemed revoked upon the expiration of the tax exemption
ruling. The new tax exemption ruling shall be valid for another three years, unless revoked or
cancelled sooner.105
B. Donee Institution Requirements
A foundation, to maintain its status as a qualified donee institution, must file its annual
information return by the fifteenth day of the fourth month after the close of its taxable year.106
The annual information return should be certified by an officer of the company, and contain the
following:
1. List of activities and/or projects undertaken by the institution;
2. Cost of each undertaking indicating in particular where and how the donation has been
utilized; and
3. That no part of its net income inures to the benefit of any private stockholder or individual.
g. Governance
There is no prohibition against foreigners sitting on the board of directors of foundations.
h. Finance and Fundraising
As previously discussed, a foundation seeking registration must have a minimum capitalization of
Php1,000,000.00.
Foundations may engage in fundraising activities to support their primary purposes. However, as discussed,
any profits made will be subject to income tax. Also, as discussed, a foundation’s net profits should revert to
the primary purposes of the foundation and none should inure to the benefit of any private entity or individual.
Also, the Tax Code provides that donations, contributions and/or gifts to donee institutions are deductible in
full. This attractive feature proves to be a motivation for taxpayers to donate and contribute to foundations
because of the greater tax benefit to them.
103. Section 4, SEC MC No. 8.104. Section 5, SEC MC. No. 8. 105. BIR Revenue Memorandum Order No. 20-2013. 106. Section 7, BIR Revenue Regulations No. 13-98.
![Page 188: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/188.jpg)
188 ASEAN Social Enterprise Structuring Guide
i. References
• The Corporation Code of the Philippines [CORPORATION CODE], Batas Pambansa Bilang 68 (1980)
• An Act Amending The National Internal Revenue Code, As Amended, And For Other Purposes [TAX
REFORM ACT OF 1997], Republic Act No. 8424 (1997)
• SEC Memorandum Circular No. 8, series of 2006
• BIR Revenue Regulations No. 13-98
• BIR Revenue Memorandum Order No. 20-2013
• FSSI, How We Help, available at http://www.fssi.com.ph/what-we-do/how-we-help/ [last accessed:
23 November 2017]
• FSSI, About the Organization, available at https://www.choosesocial.ph/organization/foundation-for-
a-sustainable-society-fssi [last accessed: July 24, 2017]
• Gawad Kalinga Foundation, Who We Are, available at http://www.gk1world.com/our-journey [last
accessed: 24 July 2017]
CONCLUDING REMARKSThe social enterprise sector in the Philippines is ripe and ready for growth. The country is on the cusp of
important policy changes that could see social enterprises start to have much wider presence and impact
in the coming years. Ensuring that legislation is in place to recognize social enterprises and provide forms of
support will be crucial to the implementation of any legislation that will be passed.
Institutionalizing a workable legal definition of “social enterprise” will be fundamental to securing practical
and viable legislation. The definition needs to be acceptable to all the stakeholders involved both in the private
and public sector. It also needs to be measurable and consistent with the principles of accountability and
transparency.
Awareness for social enterprises is also growing. Social enterprises and support organizations can further
increase this awareness and the growth of the social enterprise sector by promoting their business models,
operations, and philosophies to the public. The Philippines is likewise monitoring and studying the development
of social enterprises. It is important to ensure that this research is diverse and rigorous, and disseminated to
the public through online publications and other outlets beyond tertiary education institutions.
![Page 189: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/189.jpg)
REUTERS/DADO RUVIC
189
thailand
![Page 190: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/190.jpg)
190 ASEAN Social Enterprise Structuring Guide
INTRODUCTIONFor some years now, the Thai government has had a policy of promoting social enterprises to improve
the quality of life of the Thai people and enable the private sector to work with the government to
help communities and the broader society.
The concept of a social enterprise has been present in Thailand for several years and is defined in
the Regulations of the Office of the Prime Minister for National Promotion of Social Enterprises B.E
2554 (2011) as “an act of a private sector, which is a person, a group of persons, or a community,
operating or carrying out businesses with initially the express purpose of addressing problems
and developing a community, society or environment, and generating revenue by selling goods or
providing services not with the primary objective of maximizing profit for its shareholders.” Social
enterprises have the following specific attributes:
• Undertaking manufacturing or other operations which do not adversely affect health,
society, and the environment in the long-term;
• Applying a doctrine of self-sufficiency;
• Having the potential to have its own financial stability;
• Accumulating revenue principally from businesses or operations carried out, in order to
further a purpose of addressing problems and developing communities, societies, or the
environment, or returning benefits to society;
• Possessing the capacity to be in a variety of organizational forms; and
• Exercising good governance.
From 2011 to 2017, the Thai government has actively and continually engaged in social enterprise
reform and promotion. The National Reform Council (NRC) is the responsible body for reforming
social enterprise law in Thailand, tasked with studying and recommending legislative action, and
setting the vision and future direction of Thailand for the next 20 years.
The NRC has been setting agendas and is considering all inputs about social enterprise from experts
and the general public. The NRC is currently pursuing the following agendas, intended to contribute
to a well-developed social enterprise ecosystem in which social enterprises are independent and
self-sustainable, and not heavily reliant on government funding or private donations:
• Social entrepreneurship education
• Social innovation research system
• Social enterprise (SE) start-up grant program
thailand
![Page 191: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/191.jpg)
191 ASEAN Social Enterprise Structuring Guide
• SE certification system
• SE legal reform
• SE fund
• Sustainable procurement program
• Tax relief for social enterprises and social investors
• Thai social enterprise board/office/association
The Royal Decree on Tax Exemption (No. 621) B.E. 2559 in 2016, provide tax incentives for businesses that fall
under the definition of a social enterprise, as long as they meet certain qualifications, as well as for investors
and donors who contribute to social enterprises.
To fall within the Royal Decree’s definition of a “social enterprise,” a business must:
• be established under Thai law, with the objectives of operating a business for the sale of goods or
provision of services;
• aim to promote employment at the location of its social enterprise, or solve problems or develop local
communities, societies, or the environment; and
• not emphasize maximizing profits for shareholders or partners, and invest at least 70 percent of its
profits back into the business, or for the benefit of farmers, the poor, the disabled or the disadvantaged,
or other causes prescribed by the Minister of Finance.
Although a business may fall under the definition of a social enterprise, to qualify for corporate income tax
exemption on its net profits, 100 percent of its profits must be invested in the business, or used for the benefits
of the groups above, or other common benefits, in accordance with the rules, procedures, and conditions
prescribed by the director-general of the Revenue Department (the “Director-General”).
To be eligible for corporate income tax exemption, a social enterprise must also:
• include the words “social enterprise” in its name;
• be certified as a social enterprise by an agency prescribed by the Director-General;
• successfully apply to the Director-General to be a social enterprise on the prescribed form;
• not pay assessable income (dividends, share of profits, or income from capital reduction) to shareholders
or partners;
• not transfer property used in the business except as prescribed by the Director-General;
• not be a contracting party of its shareholders or partners, and there must be no payment of any
remuneration to its shareholders or partners, including related persons of shareholders or partners,
except where prescribed by the Director-General;
• not change the form of business operation from a social enterprise to another type of business before
the lapse of ten accounting periods, starting from the accounting period when the business was
approved to be a social enterprise; and
• comply with other rules, procedures, and conditions prescribed by the Director-General.
![Page 192: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/192.jpg)
192 ASEAN Social Enterprise Structuring Guide
If a social enterprise does not comply with the specified conditions, its tax privileges are revoked from the
beginning.
In addition, companies and juristic partnerships investing in social enterprises can enjoy corporate income tax
exemption of 100 percent of the amount invested in the social enterprise, provided that the social enterprise
meets all of the requirements specified above, with the exception that the social enterprise can pay a maximum
of 30 percent of its profits in dividends, share of profits, or capital reduction. Failure to meet this condition will
result in loss of tax exemption for the investors. Similarly, if an investor transfers shares in the social enterprise
prior to its dissolution, the investor would lose the tax exemption.
Companies and juristic partnerships donating money or property to a social enterprise can enjoy corporate
income tax exemption of up to 2 percent of their net profit, provided that the social enterprise meets all of the
conditions specified above, with the exception that the social enterprise can pay a maximum of 30 percent
of its profits in dividends, share of profits, or capital reduction. In considering the 2 percent cap, donations to
social enterprises must be included in aggregate with other qualified charitable donations. Failure to meet the
foregoing will result in loss of tax exemption for the donors.
Social enterprises that seek to conduct fundraising activities must ensure compliance with the Fundraising
Control Act B.E. 2487 (1944), which is the applicable law governing fundraising, a regulated and licensed
activity in Thailand.
Under the law, fundraising includes any purchase, sale, exchange, compensation or service which can be
shown to be for a charitable (rather than business) purpose, either for contribution to a local government or for
public interests. Fundraising activities can be conducted in public places or public advertisements.
Fundraising can only occur if the Fundraising Control Council (FCC) has approved it, except where:
• consent for fundraising has been given by the relevant ministry, government bureau, or department
arrangement; or
• fundraising is for a public charity during a religious activity, etc.; or
• fundraising during a permitted trade fair (selling goods).
The following fundraising activities are prohibited:
• Collecting funds to compensate a defendant for the payment of fines for a legal violation (unless
collected from the defendant’s relatives)
• Specifying the amount of money or other assets that a donor must donate
• Damaging public order or morale
• Damaging the diplomatic relations between Thailand and other foreign countries;
• Funding other countries’ weapons procurement
• Forcing a person to donate, or causing any fear or apprehension to a person (i.e., threatening a person
if they don’t donate money to a cause)
![Page 193: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/193.jpg)
193 ASEAN Social Enterprise Structuring Guide
A fundraiser must:
• hold a valid fundraising license at all times;
• issue a receipt to the donor upon receipt of money or assets, and keep the copy of the receipt as
evidence; and
• not use raised funds for any purpose other than the objective of the organization stated to the FCC,
except for reasonable expenses.
People are prohibited from working as fundraisers if they:
• are less than 16 years of age;
• are subject to mental disability;
• have a contagious disease;
• have been convicted of a criminal offence of robbery (theft), armed robbery, aggravated robbery, piracy,
extortion, fraud, embezzlement, receiving stolen property, or corruption within the last five years; or
• are considered to be unsuitable to perform a fundraising role by an FCC officer.
To support an application for a fundraising license, a partnership’s managing partner or authorized legal
representative must provide the following documents:
• A copy of the certificate of registration of the partnership
• A copy of the partnership’s balance sheet for the last two years, certified by an auditor
• A photograph of the fundraiser (size 6x4 cm) taken within the past six months
• A copy of the fundraiser’s personal identification card or passport
• A copy of the fundraiser’s household registration
• Two copies of the fundraising statement (translated into Thai) which will be used in the fundraising
activities
• A copy of any past fundraising license(s)
• Evidence of past performance, e.g., past fundraising performance report, or a balance sheet for income
and expenses, if any
• A copy of the bank book for the account to which the amount raised will be transferred
• A certificate of good behavior from a credible source
• A map of the office location and a picture
• Letter of permission from the owner of the office (if the office is leased)
• A medical certificate of the fundraiser’s health
It takes approximately 60 days for the license to be issued by a responsible authority. The Department of
Provincial Administration, Ministry of Interior, is the applicable authority for Bangkok, with district officers
responsible for other provinces. There is no applicable fee.
![Page 194: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/194.jpg)
194 ASEAN Social Enterprise Structuring Guide
Foreign Business Restrictions
Social entrepreneurs seeking to set up social enterprises in Thailand should be aware of the Foreign Business
Act B.E. 2543 (2000), which restricts foreign ownership of companies whose operations involve certain
types of businesses. A company is considered foreign-owned if 50 percent or more of its shares are owned
by non-Thai nationals or foreign companies. In order to operate a company that falls under the restricted
activities listed under the Foreign Business Act, a company must obtain a foreign business license or foreign
business certificate from the Ministry of Commerce. This applies to for-profit structures, such as companies
and partnerships, but not to non-profit structures, such as associations and foundations.
Future Developments
The Social Enterprise Promotion Bill was drafted to support social enterprises and remains pending. If
enacted, the bill would establish a National Social Enterprise Committee, a National Social Enterprise Office,
and a Social Enterprise Fund. The National Social Enterprise Office would be an independent state agency
with the responsibility of providing support services and training for social enterprises.
The bill would also set new definitions and promotion measures for social enterprises, including registration
processes for social enterprises, and would make using the title “social enterprise” by unregistered businesses
a fineable offense. It would set out other measures to support and incentivize investments in social enterprises,
including loan privileges and knowledge support and training by the National Social Enterprise Office.
Although further changes may be introduced to the bill before it is passed into law, this law has the potential
to provide Thailand with a fully-fledged legal framework for the effective establishment, promotion, and
regulation of social enterprises.
In the next section, we will explore the various legal forms available to social enterprises in Thailand, and the
implications associated with each structure. The legal structures for social enterprises in Thailand include:
• Non-registered ordinary partnership and limited partnership
• Private limited company
• Public limited company
• Association
• Foundation
• Cooperative
• Registered community enterprise / network
![Page 195: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/195.jpg)
195 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 1 –NON-REGISTERED ORDINARY PARTNERSHIP AND LIMITED PARTNERSHIPa. Overview
NON-REGISTERED ORDINARY PARTNERSHIP
In a non-registered ordinary partnership, there are three options for governance:
1. Each partner is a managing partner and is able to act on behalf of the partnership
2. The partners can agree to make decisions based on one vote per partner
3. A sole managing partner can be appointed
A non-registered ordinary partnership has joint and unlimited liability. This means that all partners are jointly
liable, and they cannot limit their liability to their contributions to the partnership. Partner contributions can
be in the form of money, properties, or services.
A non-registered ordinary partnership does not have its liabilities protected even if it registers with the
Department of Business Development. Therefore, if any disputes arise between partners, the particular
liabilities of each partner will be decided in court. As such, the lack of protection against the partnership’s
liabilities can make this particular structure unattractive to investors and other individuals who would
otherwise be interested in supporting a social enterprise.
LIMITED PARTNERSHIP
A limited partnership is a registered legal entity with rights that are separate from its partners. There are two
types of partners in this kind of entity:
• A limited partner whose liabilities are limited to their contributions
• A general partner with joint and unlimited liability for all partnership obligations
A limited partnership must be registered in order to establish itself as a separate legal entity.
b. Advantages & disadvantages
Advantages
√√ Registration will lead to a separate legal identity, with certain liabilities limited for partners, unlike in a non-registered partnership.
√√ May qualify for social enterprise promotion tax exemptions under the Royal Decree on the Exemption of Tax and Duties for Social Enterprises (B.E. 2559), if requirements are met.
Disadvantages
√: Lack ability to attract equity capital.
√: Liabilities of directors cannot be completely limited.
Business expansion for social missions may not be possible due to limitations on capital.
![Page 196: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/196.jpg)
196 ASEAN Social Enterprise Structuring Guide
c. Establishment process, documentation & costs
After the partners have agreed on important matters related to the partnership, such as investment options
and objectives, they must request to enter the Department of Business Development (DBD) database to
search for partnership name availability and to reserve a name, and to check that no registered partnership
has already registered under the same name or a similar name.
After reserving the partnership name, an application for registration can be made. The following documents
are required for registration:
• Hor. Sor. 1 and 2
• Wor. – Detailed objectives
• Certificate of registered partnership
• Partnership reservation notification
• Application to use a foreign name
• Sor. Sor. Chor. 1
• Map of the head office and surrounding area
• Consent letter to use the address of the head office, along with the title of ownership or possessory
right (e.g., a land deed, or lease agreement – original copies must be reviewed by authorities, and
photocopies submitted)
• Evidence of received payment, for payments from the partnership to partners
• Copies of evidence issued by a bank to guarantee, or show the financial status of all the Thai partners
• Evidence issued by the bank to guarantee or show that the managing partner has received the
investment from other partners, as well as the original copies of documents proving that payments
received by the managing partner have been received by the partnership
• Consent letter from the owner of assets to transfer ownership to the partnership, and give them the
right to use the assets
• Evidence that the partnership has possessory rights over assets
• Copies of accounts demonstrating the value of the assets which have been invested
• Contract for the transfer of assets (original)
• Power of attorney (if any)
• Evidence of charges paid
• Personal identification of all the partners
• Evidence of notary services (if any)
![Page 197: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/197.jpg)
197 ASEAN Social Enterprise Structuring Guide
If all the documents are correct and present, the total application process will take about one day. However,
if the documents are incorrect, or if there are any other issues with the application, the process can take up to
one month. The application process is as follows:
1. The application form is to be filled out, using either a typewriter or a computer, and then
printed out.
2. The managing partner must sign every page of the application form in the presence of:
• the registrar;
• administration staff;
• senior police officers from the province where the managing partner is registered;
• ordinary or extraordinary members of the Bar Association;
• a qualified auditor; or,
• any individual listed in regulations issued by the Central Registration Office.
If the managing partner signs the application form outside Thailand, it must be done in front
of a Thai Embassy officer, the head of that country’s office or ministry of commerce or their
assigned official, or a notary public. The managing partner’s signature must also be validated
according to the laws of that country. Two reliable individuals must verify the signature in front
of the registrar, in order to confirm its validity.
3. The application is submitted physically by the applicant or agent, or submitted online for an
initial check that all the documents are correct before being printed out, signed and submitted.
Online applications are retained on the DBD system for two months.
The registration fee is calculated at THB 100 per THB 100,000 of the partnership’s assets.
d. Liabilities
Limited partners are liable in proportion to their contributions to the partnership. General partners have
unlimited liability for all obligations of the partnership.
e. Tax treatment
Limited partnerships are considered juristic partnerships under the Thai Revenue Code and are subject to
corporate income tax, which is currently imposed at the rate of 20 percent of net profits. A limited partnership
that registers as a social enterprise and meets certain qualifications may enjoy additional corporate income
tax exemptions, as discussed in this chapter’s introduction.
In addition, limited partnerships investing in social enterprises can enjoy corporate income tax exemption
of 100 percent of the amount invested in the social enterprise, provided that the social enterprise meets a
number of conditions.
![Page 198: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/198.jpg)
198 ASEAN Social Enterprise Structuring Guide
f. Ongoing governance and regulatory obligations
A Thai majority-owned partnership, which is defined as a partnership with two Thai natural or juristic persons
for every foreign partner, can engage in all forms of business. However, partnerships which have a foreigner
as the managing partner, or as the manager, or in which the foreigners’ investments amount to more than 50
percent of the total partnership capital, will be regarded as a foreign partnership and subject to the Foreign
Business Act.
The Foreign Business Act B.E. 2543 (2000) is applicable to the for-profit structure of a limited partnership.
The partnership structure generally does not conform to the needs of most foreign investors, including those
seeking to operate a social enterprise. The Thai Board of Investment does not promote partnerships, because
businesses of this sort often conflict with the Foreign Business Act. Furthermore, changes in ownership and
control may jeopardize the good standing of a partnership or its license.
g. Corporate structure
A limited partnership may only be managed by general partners who have unlimited liability. Limited partners
may only contribute capital or valued properties. If a limited partner takes on a managing role, they will also
be subjected to unlimited liability for the partnership’s obligations, despite their status as a limited partner.
h. Governance
A partnership can have a foreigner as the managing partner or as the manager. However, this will be regarded
as a foreign partnership and subject to the Foreign Business Act.
i. Finance & fundraising
Contributions made to a limited partnership by the partners must be either cash or property (not services).
Partnerships cannot issue shares to raise funds from the public, and must therefore utilize personal
contributions or fundraising if they wish to finance a social enterprise.
Under the law, fundraising includes any purchase, sale, exchange, compensation or service directly or
indirectly shown to be for a charitable purpose, rather than normal commercial purposes, but rather, such
fund collection is for a charitable purpose, either for contribution to a local government or for public interests.
It is permissible for fundraising activities to be conducted in public places or public advertisements.
Fundraising can only occur after the Fundraising Control Council (FCC) has approved the social enterprise’s
fundraising application. A fundraiser must meet:
• hold a valid fundraising license at all times;
• issue receipts to donors upon receiving money or assets, and keep a copy of the receipt as evidence;
and
• not use raised funds for any purpose other than the organization’s objective stated to the FCC except
for reasonable expenses.
Foreigners are not prohibited from engaging in fundraising so long as they meet all legal requirements.
Additional details on fundraising are mentioned in the INTRODUCTION of this chapter.
![Page 199: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/199.jpg)
199 ASEAN Social Enterprise Structuring Guide
j. Case Study 1
Current Energy Limited Partnership (Asia Pacific Renewable Energy Foundation)
Current Energy has the aim of changing society for the better through environmental activities, specifically
offering alternative energy products to both state and private entities, as well as the general public. Profits
obtained from sale of the products are contributed to the foundation and used to develop social activities,
such as setting up a training center for locals to learn about alternative energy and systems for producing
alternative energy. Current Energy aims to help locals become self-reliant and to allow them to use their
training to create jobs or alternative energy-related products themselves as a form of livelihood.
The company’s products include biogas producers, electricity generators, solar-powered water pumps, and
solar panels. Current Energy operates a social needs business model, which emphasizes social impact through
processes, and products and services which are environmentally friendly, using fair-trade methods.
k. Resources
• www.boi.go.th/index.php?page=types_of_business_organizations_01_partnerships
• www.dbd.go.th/dbdweb_en/ewt_news.php?nid=3973&filename=index
![Page 200: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/200.jpg)
200 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 2 – PRIVATE LIMITED COMPANYa. Overview
A private limited company is a registered legal entity which is considered a juristic person. Limited companies
are formed by three or more persons subscribing their names to a memorandum, which seek to make profits.
A private limited company’s capital is split into equally valued shares, where shareholders’ liability is limited
to the unpaid value on their own shares.
b. Advantages & disadvantages
Advantages
√√ Liability of shareholders is limited to the amount unpaid on the shares held by them.
√√ Less regulation means more flexibility in raising capital, such as by selling shares.
√√ Ability to distribute dividends or other benefits to shareholders and employees. Flexibility in social
activities and purposes. Social purposes can be incorporated in shareholder agreements and the
company’s objectives.
√√ May qualify for social enterprise promotion tax exemptions under the Royal Decree on Tax Exemption (No. 621) B.E. 2559, if requirements are met.
Disadvantages
√: Difficulty in permanently fixing social objectives, as objectives may be changed later if the company is acquired or dissolved.
√: Difficulty in balancing profits and social benefits.
√: Difficulty in branding due to dual purpose, and possibly unclear aims, of company.
√: Private profit motive may take a higher priority than social aims.
c. Establishment process, documentation & costs
The application and registration process of a limited company is as follows:
1. Reserve a name with the Department of Business Development.
2. File the company’s memorandum of association (MOA), with at least three promoters named.
The fee for filing an MOA is THB 500 THB per THB 1 million of registered capital, with a minimum
fee of THB 500 and a maximum fee of THB 25,000. The process can take approximately two to
three working days.
3. Fully subscribe in shares.
4. Call a meeting of share subscribers in order to formally establish the company. The meeting
should cover the articles of association, appointment of directors, the setting of the director’s
powers and duties, and the appointment of auditors.
5. Conduct payment for shares. Share payment must not be less than 25 percent of their nominal
amount.
![Page 201: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/201.jpg)
201 ASEAN Social Enterprise Structuring Guide
6. Promoters will hand over the business to the directors, who will apply for registration of the
company as a separate legal entity. The government fee for this is THB 5,000 per THB 1 million
of registered capital. The minimum fee is THB 5,000, and the maximum fee is THB 250,000.
The process takes approximately four to five working days. However, if all the requirements are
met, the company can be registered within one day.
7. Once the registration is approved by the registrar, a certificate of incorporation will be sent to
the company. The company’s registration number will be its company tax identification number.
If the company expects to earn THB 1.8 million, it must acquire a VAT certificate from the Revenue Department.
This process should take three to five days.
d. Liabilities
A private limited company is a juristic person, which means it is a separate legal entity with its own separate
obligations. Therefore, its liabilities are separate from its shareholders, who are not personally at risk under
the company’s obligations. Shareholder liability is limited to the unpaid share price owed to the company.
Limited liability encourages investment by shareholders, which allows for the company to raise more capital
for social purposes.
e. Tax treatment
Corporate income tax in Thailand is generally imposed at the rate of 20 percent of net profit. Subject to
conditions, exemption and/or reduction of corporate income tax is granted to small and medium enterprises
(SMEs), regional operating headquarters, international headquarters, and international trade centers.
A private limited company that registers as a social enterprise and meets certain qualifications may enjoy
additional corporate income tax exemption under the Royal Decree on Tax Exemption (No. 621) B.E. 2559 if
the business meets a number of conditions mentioned in the INTRODUCTION of this chapter.
In addition, companies investing in social enterprises can enjoy corporate income tax exemption of 100
percent of the amount invested in the social enterprise, provided that the social enterprise meets a number
of conditions.
f. Ongoing governance and regulatory obligations
The objectives of the company must be submitted with its MOA, which is a corporate document that provides
the company’s objectives and other details. The company’s objectives must set out its social purposes, and
how to resolve conflicts between its profit-making and social aims. The company must act within its stated
objectives.
The company’s articles of association (AOA), however, address the company’s rules internally. A company’s
AOA can include the rights and responsibilities of the directors and shareholders, including setting a provision
that directors must promote social aims. The AOA can also allocate company assets for social aims.
The MOA and the AOA are considered together, and must comply with the principles of contract law. They
may be changed through a special shareholder resolution by at least three-fourths of the votes of eligible
shareholders. This means that social purposes cannot be permanently fixed within the company’s objectives,
and a limited company may change its objectives to be purely profit seeking.
The Foreign Business Act B.E. 2543 (2000) is applicable to the for-profit structure of a private limited company.
![Page 202: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/202.jpg)
202 ASEAN Social Enterprise Structuring Guide
g. Corporate structure
Two types of management are used together to govern a private limited company:
• Direct management by the company directors who are appointed by shareholders to manage and
represent the company, as its agents, conducting activities.
• Indirect management by the resolutions of shareholders at general or special meetings. Shareholders
may restrict directors’ powers or remove them at any point through a general resolution. Major
decisions such as increasing capital may only be made by a special resolution, which must be passed
by at least three-fourths of the votes at a shareholders meeting.
At every annual shareholders’ meeting, one-third of the directors must retire, unless otherwise set out in the
company AOA. However, the retired directors may be re-elected.
h. Governance
A foreigner is able to be the sole director and manage the business without being subject to the restrictions
of the Foreign Business Act so long as their shares in the company do not exceed 49 percent. Shares can be
structured to confer the foreign director with preferred shares, which provides more voting rights and voting
power over Thai shareholders, even though Thai shareholders must still maintain 51 percent of total shares.
i. Finance & fundraising
A private limited company splits its capital into a number of shares, which are subscribed to by shareholders.
Each share usually has a low value, and shareholders will hold numerous shares each. In order to raise more
capital, including to finance a social enterprise, a company may split its shares into smaller portions and sell
more shares to new subscribers. Shares cannot be withdrawn as they are permanent capital, but shareholders
can freely transfer shares without restrictions. Private limited companies cannot issue shares to raise funds
from the public.
Private limited companies may also utilize personal contributions or fundraising to finance a social enterprise.
Foreigners are not prohibited from engaging in fundraising so long as they meet all legal requirements,
including those of the fundraising control act. Additional details on fundraising are mentioned in the
INTRODUCTION of this chapter.
j. Case Study 2
Social Motion Limited (Social Giver)
Social Giver is an online platform for donations to social organizations. The platform sets quotas for products
or services from businesses in hospitality, including hotels and restaurants. Users of the platform can make
donations to various social organizations and receive vouchers that can be redeemed for these products or
services.
Their process is as follows:
• Social Giver propose their social enterprise concept to hospitality businesses.
• The hospitality businesses offer deals on products or services without charging a price. The owner of
the business will set the best available price on the deal.
![Page 203: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/203.jpg)
203 ASEAN Social Enterprise Structuring Guide
• The profile of participating businesses will be posted on the platform, and their deals opened for
purchase by anyone.
• Users of the platform buy deals, choosing which organization they will send their donations to, and
receive a voucher for the products or services.
• 2.5 percent of the price will be a transaction fee, while 97.5 percent is sent to the organization selected
by the user.
A Social Giver operates under a cross-subsidy model by selling products or services in the normal market, in
order to use its profits to support products or services for social purposes. A Social Giver either reinvests or
donates all of its profits. Since beginning its operations, 16 organizations have joined the Social Giver platform.
k. Resources
• www.boi.go.th/index.php?page=setting_up_a_business
• www.dbd.go.th/dbdweb_en/ewt_news.php?nid=3966&filename=index
![Page 204: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/204.jpg)
204 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 3 – PUBLIC LIMITED COMPANYa. Overview
A public limited company is a legal entity which is established to offer shares for sale to the public, with a
profit-seeking aim. The liability of shareholders in a public limited company is limited to the amount payable
on their shares. A public limited company is very similar to a private limited company, with the exception that
it is governed by the Public Limited Company Act B.E. 2535 (1992) (PLCA) and it is established for the purpose
of offering shares for sale to public, rather than private, shareholders.
A public limited company is required by the PLCA to specify its objectives in its MOA, which should set out
its social purposes, as well as resolve the conflicts between its profit-seeking aims and social purposes.
Corporate documents in a company may be amended according to the PLCA and other related commercial
laws. However, there is the risk that the documents may be amended to specify objectives that do not cover
social purposes as public shareholders are able to influence company objectives.
b. Advantages & disadvantages
Advantages
√√ Liability of shareholders is limited to the amount unpaid on the shares held by them.
√√ Less regulation means more flexibility in raising capital, such as through selling shares.
√√ Ability to distribute dividends or other benefits to shareholders and employees.
√√ Flexibility in respect to social activities and purposes.
√√ Social purposes can be incorporated in shareholder agreements and the memorandum of association.
√√ Ability to raise capital by selling shares to the public (unlike private limited companies).
√√ May qualify for social enterprise promotion tax exemptions under the Royal Decree on Tax Exemption (No. 621) B.E. 2559, if requirements are met.
Disadvantages
√: Laws covering public limited companies are designed to maximize profits, not social purposes.
√: Difficulty in permanently fixing social objectives, as objectives may be changed later if the company is acquired or dissolved.
√: Difficulty in balancing profits and social benefits.
√: Difficulty in branding due to dual purpose, and possibly unclear aims, of company.
√: Private profit motive may take a higher priority over social aims.
√: Shares available for purchase on the stock exchange open the company to a higher likelihood of being bought by shareholders who are not interested in social purposes.
![Page 205: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/205.jpg)
205 ASEAN Social Enterprise Structuring Guide
c. Establishment process, documentation & costs
Before going through the process of application and registration, a public limited company must register
its MOA with the Ministry of Commerce. The promoters must then offer the company’s shares to the public
for sale.
A minimum of 15 promoters are required for the application and registration process for establishing a public
limited company. The procedure for establishing a public limited company is as follows:
• The name of the company is to be searched for on the DBD database and reserved. This can be done
either by submitting a signed Name Reservation Form to the DBD, or filling in a form online and
submitting it through the DBD website. If the name is approved, the corporate name will be reserved
for 30 days.
• The MOA must be registered with the Ministry of Commerce. The MOA must contain at least: (1) the
company name; (2) the purpose for offering shares for sale to the public; (3) the company objectives,
clearly listing its categories of business; (4) its registered capital; (5) the province in which the company
will be located; and (6) the names, dates of birth, nationalities, and addresses of the promoters, and
the numbers of shares subscribed to them.
• Registration of the MOA is calculated at THB 1,000 per THB 1 million of registered capital. There is no
minimum capital requirement, and the maximum fee is THB 25,000.
• The company’s promoters must offer shares for sale to the public. Each promoter and subscriber must
pay off the total amount of their subscribed shares upon registration.
• There must be a statutory meeting within two months of the shares reaching the level set in the
MOA, and six months after the MOA registration. The statutory meeting is to cover: (1) adoption of the
company regulations; (2) ratification of contracts; (3) methods for reimbursing expenses incurred by
the promoters; (4) the ability to fix preferred shares and ordinary shares; and (5) the appointment of
the first directors and the auditors. In order to be valid, resolutions in the statutory meeting must be
passed by a majority of at least half of the total number of subscribers eligible to vote.
• After the statutory meeting, the promoters must hand over control to the directors.
• The directors must apply for registration of the company within three months, or the statutory meeting
shall be voided. The company registration fee is THB 1,000 per THB one million of registered capital.
The maximum fee is THB 250,000.
• The company’s registration number will be its tax identification number. Companies with revenue
exceeding THB 1.8 million must also register for VAT with the Revenue Department within 30 days
from when the annual revenue exceeds that threshold.
• Any company with at least one employee must register the company’s Employer Account directly
with the Social Security Office within 30 days of starting employment, under the Social Security Act.
Registration of an Employer Account can take one day, if all the required documentation is present.
• Within three months from the conclusion of the statutory meeting, the board of directors will apply to
register the company.
• All documents are to be submitted to the registrar of the DBD at the Central Registration Office
in Bangkok.
![Page 206: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/206.jpg)
206 ASEAN Social Enterprise Structuring Guide
Required documents for registration:
• Specified total amount of paid-up capital
• Total number of shares sold
• Names, dates of birth, nationalities, and addresses of the directors
• Names and number of directors authorized to sign on behalf of the company, and any limitations to
directors’ powers as set in the AOA
• Location of the head office and branch offices (if any)
d. Liabilities
A public limited company is a juristic person, which means it is a legal entity with its own separate obligations
and separate liabilities from those of shareholders. As such, the company’s shareholders have limited liability,
and are not personally at risk under the company’s obligations. Their liability is limited to the share price which
must be paid. Limited liability often encourages investment by shareholders, which allows for the company to
raise more capital for social purposes.
e. Tax treatment
As a corporation, public limited companies are subject to corporate income tax. In Thailand, corporate income
tax for public companies is usually imposed at the rate of 20 percent of net profits. Public limited companies
are also required to withhold income tax from the salary of all regular employees.
A public limited company that registers as a social enterprise and meets certain qualifications may enjoy
additional corporate income tax exemption as discussed the INTRODUCTION of this chapter.
In addition, companies investing in social enterprises can enjoy corporate income tax exemption of 100 percent
of the amount invested in the social enterprise, provided that the social enterprise meets a number of conditions.
f. Ongoing governance and regulatory obligations
The objectives of the company shall be submitted with its MOA, which is a corporate document which provides
the company’s objectives and other details. The company’s objectives must set out its social purposes, and how
to resolve conflicts between its profit-making and social aims. The company must act within its stated objectives.
The company’s AOA, however, address the company’s rules internally. A company’s AOA can include the rights
and responsibilities of the directors and shareholders, including setting a provision to state that directors
must promote social aims. The company AOA can also allocate company assets for social aims.
Under the PLCA, a public limited company must draft the AOA at a statutory meeting stage, while in a private
limited company, there is no such requirement. The PLCA explicitly provides that the MOA and AOA must not
be conflicting, and therefore the MOA and the AOA are considered together.
The MOA and AOA, among other corporate documents, can be amended over time through a special resolution
passed at a shareholder meeting by at least three-fourths of votes of the attending eligible shareholders.
This means that social purposes cannot be permanently fixed within the company’s objectives, and a limited
company may change its objectives to be purely profit seeking.
The Foreign Business Act B.E. 2543 (2000) is applicable to the for-profit structure of a public limited company.
![Page 207: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/207.jpg)
207 ASEAN Social Enterprise Structuring Guide
g. Corporate structure
A public limited company must:
• have at least 15 natural persons as promoters who are 20 years of age or over;
• have not less than half of the promoters domiciled in Thailand;
• have the promoters subscribe for shares to be paid up in money equal to not less than 5 percent of the
total registered capital;
• have at least five directors, the majority of whom must be domiciled in Thailand;
• hold a meeting of the board of directors at least once every three months; and
• have greater flexibility in issuing securities of various kinds (e.g., debentures or warrants).
Directors’ proxies are not allowed in public limited companies, and the directors must be appointed through
aggregated voting. Directors must hold a board meeting every three months.
h. Governance
A public limited company must have at least five directors, the majority of whom must be domiciled in Thailand.
Foreign directors can hold no more than 49 percent of the shares in a public limited company. Shares can
be structured to confer foreign directors with preferred shares, which provide more voting rights and voting
power over Thai shareholders even though Thai shareholders must still maintain 51 percent of total shares.
i. Finance & fundraising
A public limited company splits its capital into a number of shares, which are subscribed to by shareholders.
Unlike a private limited company, a public limited company is able to advertise the sale of shares to the public.
In order to raise more capital, including to finance a social enterprise, a company may split its shares into
smaller portions and sell more shares to new subscribers. Shares cannot be withdrawn as they are permanent
capital, but shareholders can freely transfer shares without restrictions.
In order to offer shares to the public on the Stock Exchange of Thailand (SET), a public limited company must
comply with the Securities and Exchange Act B.E. 2535 (1992), under the Securities and Exchange Commission
(SEC). A public limited company must submit disclosure documents and obtain approval from the SEC, as well
as obtain approval from the SET to list shares.
Public limited companies may also utilize personal contributions or fundraising to finance a social enterprise.
The Fundraising Control Act B.E. 2487 (1944) is the applicable law which governs fundraising, which is a
regulated and licensed activity in Thailand. Foreigners are not prohibited from engaging in fundraising so long
as they meet all legal requirements. Additional details on fundraising are mentioned in the INTRODUCTION
of this chapter.
j. Case Study 3
SE-Education Public Company Limited
”SE-ED” is an abbreviated term for Science, Engineering, and Education. It has been listed on the Stock
Exchange of Thailand since 1991, and was established under the social enterprise concept. In 2003, SE-ED
was the founder of an alternative school called Plearnpattana, along with 70 other contributors. The school
aims to stimulate educational development and inspire kids to learn.
![Page 208: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/208.jpg)
208 ASEAN Social Enterprise Structuring Guide
SE-ED and the Smarter Thais Foundation have jointly initiated other projects such as:
• The Children’s Library, which provided over 200,000 books to 3,685 schools and at least one million
students;
• The Good Friends Project, which is aimed at improving education programs in 200 schools with 36,107
students; and,
• the expansion of the Total Solution in English Proficiency Project in secondary and vocational schools
to develop English competency.
SE-ED uses a financing model that does not cost the company, or affect shareholders’ investments. This
business management method focuses on creating mass volume of learning materials, thereby reducing their
costs. SE-ED has the capacity to produce learning materials for distribution at a low cost, which makes them
affordable to the public.
k. Resources
• www.boi.go.th/index.php?page=setting_up_a_business
• www.dbd.go.th/dbdweb_en/ewt_news.php?nid=3965&filename=index
![Page 209: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/209.jpg)
209 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 4 – ASSOCIATIONa. Overview
Associations are one of the most commonly used structures in the social enterprise and charitable fields in
Thailand. Fundamentally, this legal structure is a gathering of three or more persons (members), who wish
to continually and collectively perform any non-profit activity. Such an association must register its AOA in
accordance with the Civil and Commercial Code.
Associations must be registered under Thai law. Fines are applicable should the term “association” be used in
business documents without the registration of the association.
b. Advantages and disadvantages
Advantages
√√ Flexible structure, as the association is governed by its own articles of association.
√√ Easy and simple to operate, with minimal administrative requirements.
√√ Low set-up costs.
√√ More than one member can be involved in the operation.
√√ Can be registered as a charity as well.
√√ Tax privileges are available.
√√ Non-profit nature assures donors that the association will solely use donations and revenue for social benefits.
Disadvantages
√: At least three promoters and 10 members are required.
√: An association can gain profits and income, but it is prohibited from distributing these amounts to its members.
√: Only the directors, and not the members, are authorized to carry out the association’s functions.
√: Heavy reliance on government funding and public donations as the main sources of income.
√: Unsuitable for borrowing money or seeking investment due to its legal structure and inability to issue shares, respectively.
√: Unsuitable for profit-seeking organizations.
c. Establishment process, documentation & costs
An association can be registered at the relevant district office, based on the jurisdiction of the association’s
address. The required documents (three copies each) are as follows:
• Sor. Kor. 1 – Application to establish an association form
• Articles of association
• Name, address, and occupation of not less than 10 members
![Page 210: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/210.jpg)
210 ASEAN Social Enterprise Structuring Guide
• Name, address, and occupation of the directors of the association
• Statutory meeting minutes of the association
• Map of the head office and other offices (if any) of the association
• Consent letter to use the address of the head office, along with the title of ownership or possessory
right (e.g., a land deed, or lease agreement – original copies must be reviewed by authorities, and
photocopies submitted)
• Identification card(s) of the Thai person(s) or the passport(s) of the foreigner(s)
• Household registry copy (for Thai nationals)
Should the association have a director who is a foreigner, he or she needs to undergo a background check by
the Thai National Intelligence Agency and the embassy where he or she holds nationality. Letters from both
organizations need to be submitted to the relevant district office where the association will be registered.
The district officer will review all the documents and determine whether any other authorities need to become
involved in the association’s registration. The applicant will be notified after the association registrar makes a
decision on the association’s registration. The process takes approximately 60-70 days to complete.
There is a fee of THB 2,005 per association registration application.
d. Liabilities
An association is a legal entity that is separate from its members. It can therefore hold assets in its own name,
and its members will not be personally liable for the debts and other obligations of the association as long as
they comply with the laws and the articles of association. If an association intends to hire workers, enter into
agreements, or purchase or rent property, the association may use its own funds.
e. Tax treatment
Associations registered under Thai law are subject to pay corporate income tax on gross income before
deduction of any expenses. The tax rates are:
• 2 percent on gross income under section 40 (8) of the Revenue Code (i.e., income from business,
commerce, agriculture, industry, transport, etc.).
• 10 percent on any gross income other than income under section 40 (8) of the Revenue Code (i.e.,
interest, dividend, capital gain, rental, commission, professional fee, etc.).
Associations are exempt from corporate income tax on registration and subscription fees received from
members, and on money or properties received as donations or gifts.
Associations prescribed as public charity organizations or institutions under a notification of the Ministry of
Finance are exempt from corporate income tax on all kinds of income. Donations to qualifying associations
below a specified amount can be deducted from the donor’s personal income tax or corporate income tax.
![Page 211: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/211.jpg)
211 ASEAN Social Enterprise Structuring Guide
f. Ongoing governance and regulatory obligations
Every fiscal year, the association is required report its operational performance to the Association Registrar,
and provide the following documents:
• Operational report for the past fiscal year
• Audited account and balance sheet for the past fiscal year
• Copies of all minutes of meetings of the board of directors for the past fiscal year
An association is a legal identity that is distinct from its members. It can enter into agreements in its own
name, as referred to in its articles of association, and the association’s members do not have to individually
and personally enter into such agreements.
Associations can gain profit and income, but they are prohibited from distributing such amounts to their
members. As it is a non-profit entity, an association can only use its profits and income for continuing its social
objectives and the public good.
g. Corporate structure
To be established, an association requires at least three promoters, whose backgrounds are endorsed by a
Level 6 civil servant or higher. The association must also have at least 10 members, who may be divided into
ordinary members and honorary members, with the latter possessing most of the rights of ordinary members
except the right to vote.
Any change in the board composition (e.g., retirement, removal, or replacement of directors) must be registered
with the Association Registrar within 30 days from the date of the meeting which resulted in the changes.
h. Governance
There is no prohibition against foreigners sitting on the board of directors of an association.
i. Finance & fundraising
Associations can accept financing and funding from their members. Associations may also utilize fundraising
to finance their social enterprise. The Fundraising Control Act B.E. 2487 (1944) is the applicable law which
governs fundraising, which is a regulated and licensed activity in Thailand. Foreigners are not prohibited from
engaging in fundraising so long as they meet all legal requirements. Additional details on fundraising are
mentioned in the INTRODUCTION of this chapter.
j. Case Study 4
PDA (The Population and Community Development Association Thailand)
The Population and Community Development Association (PDA) was established by Mr. Mechai Viravaidya
in 1974 as a non-governmental and non-profit organization, with the objective to promote family planning
and safe sex in Thailand. PDA trained rural residents on sex education, and distributed various types of
contraceptives.
The PDA network has reached over one-third of Thailand, and contributed to lowering unplanned pregnancy
and sexually transmitted diseases. To date, PDA has operated approximately 300 projects. The PDA also has
a business network to support its charitable cause funding, such as Cabbages and Condoms Restaurant in
![Page 212: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/212.jpg)
212 ASEAN Social Enterprise Structuring Guide
Bangkok, Birds and Bees Resort in Pattaya, Mountain Resort Saptai C&C in Khao Yai, B.R.E.A.D. (a company
which aims to promote education and rural development), and a rice business.
k. Resources
• www.rd.go.th/publish/fileadmin/user_upload/roa/aboutus/roa-knowledge.pdf
• www.rd.go.th/publish/44182.0.html
• www.dopa.go.th/public_service/service_guide30
• www.dopa.go.th/public_service/service_guide143/view144
![Page 213: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/213.jpg)
213 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 5 – FOUNDATIONa. Overview
A foundation consists of property allocated to public charity, religion, arts, science, education, or other
purposes for public benefit and not profit. A foundation must be registered and state the term “foundation”
in its name.
b. Advantages & disadvantages
Advantages
√√ Flexible structure, as the foundation is governed by its own articles of association
√√ Easy and simple to operate, with minimal administrative requirements
√√ Low set-up costs
√√ Can be registered as a charity as well
√√ Tax privileges are available
√√ Non-profit nature assures donors that the foundation shall use its donations and revenue entirely for social benefits
Disadvantages
√: A foundation can gain profits and income, but it is prohibited from distributing these amounts to its members
√: Difficulties in seeking private investment, as the foundation cannot issue shares
√: Heavy reliance on government funding and public donations as the main sources of income
√: Unsuitable for borrowing money or seeking investment due to its legal structure and inability to issue shares, respectively
√: Unsuitable for profit-seeking organizations
c. Establishment process, documentation & costs
A foundation can be registered at the relevant district office, based on the jurisdiction of the foundation’s
address. Three copies of each of the following documents are required:
• Mor. Nor. 1 – Application to establish a foundation
• Articles of association
• Name, address, and occupation of the directors of the foundation (at least three people)
• Evidence of name change (if applicable)
• Statutory meeting minutes of the foundation
• Interview record on the status and good behavior of the directors of the foundation, as well as
certification made by the directors of the foundation
• Approval letter from the founder of the foundation, or the heir, or other relevant government authorities
![Page 214: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/214.jpg)
214 ASEAN Social Enterprise Structuring Guide
• Identification card(s) of the Thai person(s), or the passport(s) of the foreigner(s) for the property owner
and the directors of the foundation (certified true and correct copy)
• Household registry copy for the property owner and the directors of the foundation (certified true and
correct copy)
• Bank certificate confirming the deposit of such property at the bank (must be from the bank that holds
such property)
• For land property allocated to the foundation, there shall be a title deed and a land valuation report
• A copy of a will, in the case of an estate-granted property to the foundation, and written representation
that the property will be granted to the foundation by the property owner, as well as the bank’s
certification
One original copy and two photocopies of the following documents are required:
• Map of the head office and other offices (if any) of the foundation
• Consent letter to use the address of the foundation with the title of ownership or possessory right
• Management authority over the land (e.g., title deed of the land, land sale and purchase agreement,
construction permit, lease agreement, and company affidavit, if any)
Should the foundation have a director who is a foreigner, he or she needs to undergo a background check by the
Thai National Intelligence Agency and the embassy of his or her nationality. Letters from both organizations
need to be submitted to the relevant district office where the foundation will be registered.
The entire process takes approximately 60 days to complete. First, the district officer will review all the documents
and determine whether any other authorities need to become involved in the foundation’s establishment. The
applicant will be notified after the Foundation Registrar makes a decision on the foundation’s registration.
The application fee is THB 210 per application. Other fees may apply if additional filings are required.
d. Liabilities
A foundation has a legal identity that is separate from that of its members. It can therefore hold assets in its
own name, and its members will not be personally liable for the debts and other obligations of the foundation
should members comply with the laws and the articles of association. If a foundation intends to hire workers,
enter into agreements, or purchase or rent property, the foundation may use its own funds.
e. Tax treatment
Foundations are subject to corporate income tax and the same conditions for tax exemption as associations.
f. Ongoing governance and regulatory obligations
In March of every year, foundations are required to report their operational performance to the foundation
registrar, and provide the following documents:
• Operational report for the past fiscal year
• Audited account and balance sheet for the past fiscal year
• Copies of all minutes of meetings of the board of directors for the past fiscal year
![Page 215: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/215.jpg)
215 ASEAN Social Enterprise Structuring Guide
A foundation is a legal identity that is distinct from its members. It can enter into agreements in its own name,
as referred to in its articles of association, and foundation members do not have to individually and personally
enter into such agreements.
Foundations can gain profits and income, but they are prohibited from distributing such amounts to their
directors. They are non-profit entities, and thus, they can only use their profits and income for continuing their
social objectives and public good.
g. Corporate structure
A foundation requires regulations and a board of directors, consisting of at least three persons, in order to
conduct its business. The law requires that any change in the board composition must be registered with
the foundation registrar within 30 days from the date of the meeting which resulted in changes to the board
composition (e.g., retirement, removal, or replacement of directors).
h. Governance
There is no prohibition against foreigners sitting on the board of directors of a foundation.
i. Finance & fundraising
A foundation must have funds of not less than THB 500,000 in cash, or THB 250,000 in cash and other
properties that have a combined value of not less than THB 500,000. Foundations for social welfare, education
promotion, sports, religion, public hazard mitigation, health treatment, AIDS prevention, drug rehabilitation,
or which are government-funded foundations, must have funds of not less than THB 200,000.
Representatives or managers of a foundation will allocate or manage the foundation’s property, the profits
from which must be solely used for the foundation’s social causes and charitable purposes. That is to say,
representatives or managers of foundations are not authorized to appropriate the profits for their personal
gain. For example, they cannot appoint a relative to be a director of a foundation, and then grant them an
unreasonably high remuneration, because this will indirectly lead to the sharing of profits to the representative
or manager, and this would be considered tax evasion on their personal incomes.
Foundations may use fundraising to finance their social enterprise. The Fundraising Control Act B.E. 2487
(1944) governs fundraising, which is a regulated and licensed activity in Thailand. Foreigners can engage in
fundraising so long as they meet all legal requirements. Additional details on fundraising are mentioned in
the INTRODUCTION of this chapter.
j. Case Study 5
Chao Phya Abhaibhubejhr Hospital Foundation
The Hospital Foundation was established in 2002 to preserve knowledge about traditional medical and
Thai herbs. It uses revenue from manufacturing and selling Thai herbs to support its hospital expenses and
educate the Thai public on herbs and their health benefits. The Hospital Foundation encourages farmers
to conduct organic farming by using a forward purchase contract, with produce processed and distributed
through various channels in urban areas.
At present, there are nine organic farming zones, which help deter urbanization, and promote local employment
in rural areas. Farmers can earn revenue to pay off debts using the communal fund available. There is also a
self-funded center, which promotes organic farming in rural communities.
![Page 216: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/216.jpg)
216 ASEAN Social Enterprise Structuring Guide
The Hospital Foundation generates annual sales revenue of over THB 400 million (about USD 11.4 million).
About 70 percent of the foundation’s revenue is distributed to the hospital for medical expenses, while 30
percent of the revenue is used to develop herbal products and support other social causes.
k. Resources
• www.dopa.go.th/public_service/service_guide30
• www.rd.go.th/publish/44182.0.html
![Page 217: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/217.jpg)
217 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 6 – COOPERATIVEa. Overview
A cooperative, under the Cooperative Act B.E. 2542 (1999), is a registered group of persons who conduct
affairs for collective socioeconomic interests on the basis of self-sufficiency. In Thailand, there are seven types
of cooperatives available:
• agricultural cooperatives;
• fisheries cooperatives;
• land settlement cooperatives;
• consumer cooperatives;
• thrift and credit cooperatives;
• service cooperatives; and
• credit unions.
After registration, the cooperative must include the words “cooperative limited” in its name.
b. Advantages & disadvantages
Advantages
√√ Separate legal entity, with liability of members limited to their share capital.
√√ Flexible governance arrangements.
√√ Exemption from certain government fees for immovable property transactions.
√√ Exemption from corporate income tax and certain stamp duties.
√√ Access to various funding such as the Cooperative Development Fund.
Disadvantages
√: Restrictions on distribution of profits.
√: Requirement to comply with ongoing reporting requirements.
c. Establishment process, documentation & costs
A cooperative must be established by registration under the law, and must have as its objectives the promotion
of the socioeconomic interests of its members by means of self-help and mutual assistance, in accordance
with the cooperative principles. It must also satisfy the following criteria:
• have common business affairs according to the type of cooperatives which are proposed for registration;
• have natural persons who are of legal age as members;
• have capital which is divided into shares of equal value, with each member holding at least one share,
but not more than one-fifth of the total paid-up shares; and,
• have qualified members.
![Page 218: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/218.jpg)
218 ASEAN Social Enterprise Structuring Guide
The procedure for forming and registering cooperatives is as follows:
• Natural persons who are of legal age and have common needs or interests form a group.
• A statutory meeting is held to appoint at least 10 persons to a board of cooperatives.
• The board of cooperatives selects the type of cooperative and its objectives, makes a business plan,
and creates a list of prospective members’ names and allocated shares.
• Articles of association are drafted and adopted.
• The board of cooperatives files an application to register the cooperative at the provincial or district
cooperative office, including;
» the application form to registration of the cooperative;
» two copies each of the minutes of the meeting to select the board of cooperatives and the
minutes of the meeting to adopt the articles of association;
» two copies of the business plan relating to the business or activities of the cooperative;
» two copies of the lists of the members’ names, together with their signatures and the number
of shares each person will hold; and
» four copies of the articles of association.
The provincial or district office will forward the application to the cooperatives registrar, which will take
approximately 15 days to consider it, and will register successful cooperatives within 30 days of receiving the
application, with no fee.
d. Liabilities
A cooperative has a separate legal identity from its members. It can therefore hold assets in its own name,
and its members will not be personally liable for the debts and other obligations of the association should
members comply with the laws and the articles of the cooperative. The may use its own funds to hire workers,
enter into agreements, or purchase or rent property.
e. Tax treatment
Registered cooperatives are exempt from corporate income tax.
f. Ongoing governance and regulatory obligations
At least 10 percent of the annual net profit of the cooperative must be contributed to the reserve fund, and not
more than 5 percent of its annual net profit must be contributed to the Cooperative League of Thailand. The
remaining annual profit, subject to cooperative’s articles of association of the cooperative, may be appropriated
by the general meeting as:
• dividends on paid-up shares, not exceeding the rate prescribed for each type of cooperative in
ministerial regulations;
• a patronage refund to the members, in proportion to the volume of business which they conducted
with the cooperative during the year;
![Page 219: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/219.jpg)
219 ASEAN Social Enterprise Structuring Guide
• bonuses to the members of the board of directors and other cooperative personnel, not exceeding 10
percent of the net profit; and,
• contributions to accumulated funds for carrying out any activity of the cooperative, as prescribed in the
articles of association.
A cooperative is required to maintain and retain all its accounts at its office. Any cash transactions must be
recorded and accompanied by relevant evidence on the date when the transactions occurred. Transactions not
involving cash must be recorded in the accounts within three days.
A cooperative needs to make a balance sheet for every accounting year. The balance sheet must declare the
cooperative’s assets, liabilities and capital, and profits and losses. It must be audited and then submitted, for
approval, to a general meeting of the cooperative within 150 days from the last date of the accounting year.
A cooperative must produce an annual report showing the results of its operations and submit it, with its
balance sheet, to the cooperatives registrar within 30 days of the meeting.
A cooperative is required to keep the annual reports of its operations, the balance sheets, and the articles of
association at its office, for inspection by the members.
g. Corporate structure
All cooperative members are owners of the cooperative, but not all owners can administer it. They must
therefore elect a board of directors to act on their behalf.
In order for a cooperative to carry on its affairs and serve all (or most) of its members, the board of directors
employs a manager to carry out the business of the cooperative. The manager, in turn, employs and supervises
employees in performing the cooperative’s day-to-day operations.
A cooperative’s board of directors consists of a chairperson and up to 14 board members who have been
elected by a general meeting of the cooperative. The directors are elected for two years each. Anyone with the
following attributes is prohibited from being a director:
• Previously served a final judgment of imprisonment, except for punishment for recklessness or
misdemeanor offences.
• Was expelled or dismissed from government service, government, or private organizations due to
dishonesty in the conduct of his or her duties.
• Was dismissed, or is to be dismissed, from the board of directors of a cooperative by a final ruling of
the cooperative registrar with regard to any involvement in any defects relating to finance, accounting,
performance, or financial conditions according to the audit report or the inspection report.
• Was dismissed from the board of directors by a general meeting of a cooperative due to dishonesty in
the conduct of his or her duties.
h. Governance
Cooperatives are covered by a special business law, with various taxation benefits and waivers of government
fees. The law’s objectives are to support Thai citizens who have hardships, in order to help them support each
other and collectively work together. Therefore, cooperative members and directors must be Thai nationals,
and foreigners are prohibited.
![Page 220: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/220.jpg)
220 ASEAN Social Enterprise Structuring Guide
i. Finance & fundraising
A cooperative can accept financing and funding from its members, subject to compliance with the Cooperatives
Act’s regulations and requirements.
Cooperatives may fundraise to finance their social enterprise, provided they meet the requirements discussed
in the INTRODUCTION of this chapter.
j. Case Study 6
Border Patrol Police Sub-division 24 Savings and Credit Cooperative Limited (BPC24 Cooperative)
The BPC24 Cooperative was established in 1971 with the objective to promote financial and social benefits for
its members, in order to achieve sustainability and self-sufficiency. It accepts savings deposits and provides
loans to its members, and also provides inter-cooperative lending. In 2015, it had over 1,700 members, over
THB 100 million (about USD 2.87 million) in members’ savings deposits, and THB 678 million (about USD 19.3
million) in capital. It has entered into over 2,000 loan agreements with its members and achieved net profits
of THB 59 million (about USD 1.68 million) in 2015.
k. Resources
• www.coop-thailand.com/en/cooperatives-in-thailand
• http://www.cpd.go.th/
![Page 221: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/221.jpg)
221 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 7 – REGISTERED COMMUNITY ENTERPRISE / NETWORKa. Overview
The Thai government promotes community enterprises by providing funding options and benefits under the
Community Enterprise Promotion Act B.E. 2548 (2005). This law originated from the “One Tambon One
Product” policy, which promotes development of various community products.
To qualify, a business must be related to producing goods, providing services, or other matters that lead to
community development and problem solving. Community enterprises are formed from existing unregistered
ordinary partnerships or non-juristic bodies of persons, for the benefit of a community. Upon registration, the
legal structure’s name must include the term “community enterprise.”
b. Advantages & disadvantages
Advantages
√√ Flexible governance arrangements
√√ Can request extension services or support from the government
√√ Tax benefits
Disadvantages
√: Restrictions on the distribution of profits
√: Mandatory compliance with ongoing reporting requirements
c. Establishment process, documentation & costs
To qualify, the business must be related to producing goods, providing services, or other matters that lead to
community development and problem solving. The business needs to be collectively operated in the community
by a group of persons (either natural persons or juristic persons). The group must include at least seven people
from different families who live in the community. The business must be for profit, self-sufficiency, and the
benefit of the community. The business cannot be unlawful or against public morals or public order.
It takes approximately 15 days to register a community enterprise at a Subdistrict Agricultural Technology
Transfer and Service Center, Office of Agriculture, which are located in various provinces. The following
documents are required:
• Sor. Wor. Cho. 1 – Application to register the community enterprise
• Consent from the members (at least half of the total number of members) or a copy of the minutes
of the meeting resolution which assigns such person to register the community enterprise (for a non-
juristic person)
• Identification card of the applicant
• List of names and addresses of the members
• Documents showing the objectives, regulations, or articles of association of the juristic person
• List of the board of directors names (for a juristic person)
![Page 222: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/222.jpg)
222 ASEAN Social Enterprise Structuring Guide
• Minutes of the board of directors meeting or general meeting of shareholders (for a juristic person
which wishes to register as a community enterprise)
There is no applicable fee for such registration.
d. Liabilities
Registration as a community enterprise does not create a separate legal entity, and the extent of liability
depends on the previous form of entity of the applicant. Registration will not affect the current corporate
structure of the applicant (e.g., if the applicant is a private limited company, its liability will be as a private
limited company only).
e. Tax treatment
Subject to conditions, personal income tax exemption was previously available for natural persons who
operate a community enterprise registered under the Community Enterprise Act. To be eligible, the registered
community enterprise must operate in the form of a non-registered ordinary partnership or a non-juristic body
of persons, with income under THB 1.8 million per tax year.
The tax exemption was applicable for the 2009-2016 tax years, and would require reauthorization from
relevant authorities to continue.
f. Ongoing governance and regulatory obligations
A community enterprise must maintain all of its accounting and tax filings for at least five years from the filing
date. Other governance and regulatory obligations will depend on the original entity form prior to registration
as a community enterprise.
g. Corporate structure
A community enterprise must be operated in a community by a group of at least seve persons (natural or
juristic), who live in the community, and do not come from the same family. Two or more community enterprises
may register to form a network.
h. Governance
Foreigners are prohibited from becoming members of a community enterprise.
i. Finance & fundraising
Charitable public fundraising activities are regulated under the Fundraising Control Act B.E. 2487 (1944), as
mentioned in the INTRODUCTION of this chapter.
j. Case Study 7
Kanchanaburi Dry Flowers Crafts
This community enterprise was established in 2005, with 15 starting members. By 2015, there were over 40
members. Kanchanaburi Dry Flowers Crafts aims to address the pervasive drought situation in the Nong Song
area of Kanchanaburi province by developing alternative means of livelihood besides agriculture. Tree bark,
leaves, grass, flowers, and woodchips in the community were used as raw material for creating crafts. Various
plants and flowers were dyed, decorated, and sold as crafts. These products created much value, and have
thus far been sustainable and helped to support the community. This community enterprise is registered and
supported by the Kanchanaburi Agricultural Office.
![Page 223: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/223.jpg)
223 ASEAN Social Enterprise Structuring Guide
To date, each member can earn over THB 4,800-9,000 per month from the enterprise’s earnings. The
community enterprise also provides knowledge transfer and training to students, housewives, and other
interested persons. Kanchanaburi Dry Flowers Crafts also holds an annual food festival for children from
Nong Song Ton School on National Children’s Day, and holds fundraising activities for Nern Pra Ngam Temple
each year.
k. Resources
• www.dopa.go.th/public_service/service_guide30
• http://smce.doae.go.th/
As a summary, the available legal structures for social enterprises which have been included in this report are
as follows:
1. Partnership
2. Private Company Limited
3. Public Company Limited
4. Association
5. Foundation
6. Cooperative
![Page 224: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/224.jpg)
224 ASEAN Social Enterprise Structuring Guide
We have also provided a table, which compares these existing legal structures, together with the proposed social enterprise
model under the Social Enterprise Promotion Bill.
*Please note that the community enterprise structure is not included in the table, because it is not a legal structure per se; it is merely a
registration to obtain certain benefits from the government. The community enterprise’s features will depend on the existing structure it
has prior to registration as a community enterprise e.g. whether it is a private limited company or a registered partnership etc.
Social Enterprise Bill’s structure
(not legally effective yet)
1.Partnership
2.Private
Company Limited
3.Public Company
Limited
4.Foundation
5.Association
6.Cooperative
Overview Dual purpose of profit-seeking and social causes
Traditionally aimed at maximizing profit for its partners
Traditionally aimed at maximizing profits for its shareholders
Traditionally aimed at maximizing profit for its shareholders
Non-profit and acts for public charities, religion, arts, science, education, or other public benefits
Non-profit Act for the members’ best interest
Ongoing Governance
Directors to manage business on behalf of the shareholders, and simultaneously contribute to social causes
Managing partner to manage the business on behalf of the partners
Directors to manage the business on behalf of the shareholders
Directors to manage the business on behalf of the shareholders. Stringent governance regulations, especially if listed on the stock exchange
Directors of the foundation oversee the activities of the foundation
Directors of the association oversee the activities of the association
Directors of the cooperative oversee the activities of the cooperative
Dividends distribution
Yes, but with restricted dividend distributions to investors
Yes Yes Yes No No Yes
Income Tax Rates Applicable (2016)
Tax-exempted (subject to conditions)
20 percent of net profits
20 percent of net profits
20 percent of net profits
Some categories of income exempt; 2 percent or 10 percent on gross income of other categories, unless Ministry of Finance grants exemption of all income
Same as a foundation
Tax-exempted
Liability Limited Unlimited for a non-registered ordinary partnership
Limited for a registered limited partnership
Limited Limited Limited Limited Limited
Share issuance
Yes Yes – but only privately
Yes – but only privately, and it cannot issue shares to the public
Yes – it can issue shares to the public
No No Yes – can seek certain qualified members from the public (e.g. those suffering from poverty and hardship etc.)
Acceptance of charitable donations
Yes Generally prohibited
Generally prohibited
Generally prohibited Yes Yes Generally prohibited
![Page 225: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/225.jpg)
225 ASEAN Social Enterprise Structuring Guide
Other general questions:
Q1: Is it advisable to have more than one legal form?
A1: This depends on the forms of income. For example, should the principal income of the social enterprise
be derived from charity, a foundation would be a more suitable legal structure for the social enterprise.
Currently, there is no hybrid legal structure available under Thai law (awaiting the enactment of the
Social Enterprise Bill). Therefore, it is advisable to have more than one legal form, depending on the
nature of the financing of the social enterprise.
Q2: Can a charity/NGO transition into a social enterprise model?
A2: Again, there is yet to be any complete social enterprise model under the specific law (awaiting the
enactment of the Social Enterprise Bill), and hence, there is no transition procedure available as of now.
However, a charity and NGO can register itself as a ‘social enterprise’ under the company registration
database, but this is only in form and not in substance, as a complete social enterprise unit is yet to be
supported under the law.
![Page 226: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/226.jpg)
REUTERS/KHAM
226
vietnam
![Page 227: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/227.jpg)
227 ASEAN Social Enterprise Structuring Guide
INTRODUCTIONIn Vietnam, organizations that perform charitable and non-profit functions can be found under
both formal (e.g., social relief organizations, social funds and international non-governmental
organizations) and informal (e.g., voluntary clubs and religious organizations) structures. However,
with conventional charitable activities and donations seemingly becoming unsustainable, there has
been recent increased demand for a legal framework to enable social enterprises to simultaneously
generate business profits while pursuing a social mission in the community.
To meet society’s needs, Vietnamese lawmakers recognized the legal concept of “social enterprises”
for the first time under the new Law on Enterprises of Vietnam (LOE), effective since July 1, 2015.
A dedicated legal framework for the establishment and operation of social enterprises is further
detailed under the LOE’s detailed legal guidance documents—Decree No. 96/2015 and Circular No.
04/2016.
With the LOE assigning a clear responsibility to the government to issue policies to “encourage,
support and promote the development of social enterprises,” the social enterprise trend is
developing swiftly and strongly in Vietnam.
Like a non-social enterprise, a social enterprise is established under the provisions of the LOE.
Under Article 10 of the LOE, the two typical characteristics distinguishing a social enterprise from
a non-social enterprise are: (1) having the objective to resolve social or environmental issues in the
interest of the community; and (2) having at least 51 percent of its profits reinvested to accomplish
its registered social or environmental objective.
Upon establishment, similar to a non-social enterprise, a social enterprise may take any of the
following business forms: a private enterprise, a single-member limited liability company (1LLC), a
multiple-member limited liability company (MLLC), a shareholding company (SC), or a partnership.
Social enterprises have all corresponding rights and obligations of their business forms, as well as
other rights and obligations dedicated to social enterprises.
Since the LOE took effect, more than 20 social enterprises have been established, including
new social enterprises and those converted from non-social enterprise structures. Most of these
organizations have registered offices in Ho Chi Minh City or Hanoi.
Within the scope of this chapter, we will discuss the three most common social enterprise forms:
1LLC, MLLC and SC.
vietnam
![Page 228: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/228.jpg)
228 ASEAN Social Enterprise Structuring Guide
Overview
Similar to a non-social enterprise, a social enterprise is established under the Law on
Enterprises with all the same liabilities as an enterprise
1LLC social enterprise
• Owned by one organization or individual.
• May not issue shares.
• The owner is liable for all of the enterprise's debts and other property obligations within the amount of its charter capital.
• The owner will have total control.
1LLC social enterprise
• Owned by multiple organizations or individuals called members, but may not have more than 50 members.
• May not issue shares.
• A member is liable for the debts and other property obligations of the enterprise within the amount of capital that the member has undertaken to contribute to it.
• Shared responsibilities and cost of investment among members.
SC social enterprise
• Owned by multiiple organizations or individuals called shareholders, with a minimum of three shareholders and no restriction on the maximum number of shareholders.
• May issue shares and bonds.
• A shareholder is liable for the debts and other property obligations of the enterprise only within the amount of capital it has contributed to it.
• Founding shareholders shall hold at least 20 percent of the ordinary shares at the registration date.
Social enterprises under all forms of business establishment have two typical characteristics: (1) having the objective to resolve social or environmental issues in the interest of the
community and (2) having at least 51 percent of profits reinvested to accomplish social and environmental objectives as registered.
![Page 229: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/229.jpg)
229 ASEAN Social Enterprise Structuring Guide
CHART
LEGAL STRUCTURE 1 – SOCIAL ENTERPRISE UNDER THE FORM OF A SINGLE-MEMBER LIMITED LIABILITY COMPANY (1LLC)a. Overview
Similar to a conventional 1LLC, a social enterprise in the form of a 1LLC (1LLC SE) is an enterprise owned by one
organization or individual having the rights and obligations of a 1LLC. The owner of the 1LLC SE is liable for all
of its debts and other property obligations within the amount of its charter capital.
A 1LLC SE can only reduce its charter capital in the following cases:
• It returns part of the owner’s capital contribution in its charter capital, provided that the 1LLC SE
has carried out business activities continuously for more than two years from the date of enterprise
registration, and ensures payment of all of its debts and other property obligations after the capital is
returned to the owner; or
• The charter capital is not paid in full and on time by the owner as required.
b. Advantages & disadvantages
Advantages
√√ The owner will have total control over the operation of a 1LLC SE.
Disadvantages
√: A 1LLC SE has limited access to finance as it may not issue shares.
c. Establishment process, documentation & costs
The 1LLC SE must register its establishment with the licensing authority (e.g., Department of Planning and
Investment (“DPI”)) of the city or province where its head office is located, in accordance with the applicable
processes, procedures, and application file prescribed in the LOE.
The application file shall include (1) the registration application for establishment, similar to a non-social
enterprise 1LLC (e.g., application in prescribed form, decision on establishment of 1LLC SE of the owner,
and draft company charter), and (2) the commitment to implement the social and environmental objectives
(Commitment), which clearly specifies:
• The social or environmental issues intended to be solved by the social enterprise;
• The methodology for solving the social or environmental issues;
• The duration of operation to solve the social or environmental issues;
• The annually retained profit reinvested for solving the social or environmental issues; and
• The principles and use of donations, and settlement of outstanding donations in case of dissolution or
restructuring of the social enterprise (if any).
The Commitment is only required to be submitted for the establishment of a SE, and will be made in
prescribed form.
![Page 230: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/230.jpg)
230 ASEAN Social Enterprise Structuring Guide
At the end of this process, the licensing authority will grant the 1LLC SE an Enterprise Registration Certificate
(ERC). The time limit by law to issue the ERC is within three working days from the date of receipt of a complete
and valid dossier. This process may take longer in practice, depending on the nature and complexity of the
application.
If the 1LLC SE has a foreign investor(s), the procedure for investment registration under the Law on Investment
(LOI) needs to be completed prior to the registration of the social enterprise (prior to obtaining the ERC). The
completion of this process will grant the investor(s) an Investment Registration Certificate (IRC).
An existing 1LLC can convert to a 1LLC SE by sending a written notification of its commitment to implement
its social and environmental objectives (i.e., the Commitment) to the licensing authority of the city or province
where the head office is located. The licensing authority will update its conversion of the social enterprise on
the National Business Registration Portal.
The government fee for the ERC is VND 200,000 (approx. USD 8.70) and for declaration of contents of
enterprise is VND 300,000 VND (approx. USD 13.05). The IRC is granted free of charge by the licensing
authority.
There is no fee for the conversion of an existing 1LLC to a 1LLC SE.
d. Liabilities
These regulations apply to social enterprises under all forms of business establishment.
Liabilities as a normal enterprise
The social enterprise will have all liabilities as an enterprise under Vietnamese law. In particular:
• To satisfy all business conditions when conducting business in the lines of business investment which
are subject to conditions in accordance with the LOI and to ensure maintenance of all such business
investment conditions during the process of business operation;
• To organize accounting work and to prepare and submit truthful and accurate financial statements on
time in accordance with the law on accounting and statistics;
• To declare and pay taxes and to perform other financial obligations as stipulated by law;
• To ensure the lawful and legitimate rights and interests of employees in accordance with the labor
law; not to discriminate between or offend the honor and dignity of employees in the enterprise; not
to use forced labor and child labor; to support and facilitate its employees to participate in training to
improve their qualifications and technical skill; to implement the regimes of social insurance, job loss
insurance, health insurance, and other insurance for employees in accordance with law;
• To ensure and be responsible for the quality of goods and services in accordance with standards
stipulated by law or registered or declared standards;
• To fully and promptly perform the obligations regarding enterprise registration, registration of change
to contents of enterprise registration, public disclosure of information about establishment and
operation, reporting and other obligations in accordance with the LOE, and other provisions of relevant
law;
![Page 231: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/231.jpg)
231 ASEAN Social Enterprise Structuring Guide
• To be responsible for the honesty and accuracy of information declared in the application file
for enterprise registration and in reports; and to promptly make amendments of and additions to
such information on discovery of any information which was declared or reported inaccurately or
incompletely;
• To comply with the law on national defense, security, social order and safety, gender equality, protection
of natural resources and environment, and protection of historical and cultural sites and places of
scenic beauty; and
• To perform obligations in respect of business ethics in order to ensure lawful rights and interests of
customers and consumers.
Liabilities as a normal enterprise
• To maintain the registered Commitment and register any change to the registered Commitment; and
• To return any incentive or donation enjoyed by the social enterprise in case of a failure to implement,
or an improper implementation of, the registered Commitment.
e. Tax Treatment
These regulations apply to social enterprises under all forms of business establishment. There are no separate
provisions on tax incentives for a social enterprise under the current Law on Corporate Income Tax of Vietnam.
However, there is an implication that if an enterprise’s operations/business are for the benefit of social
communities, such enterprise may be given tax incentives in one of the following forms:
• Tax exemption
• Preferential tax rate
• Tax reduction
Subject to the registered business of the social enterprise, the following income may be tax-exempt:
• Income earned from production activities and business in goods and services by enterprises employing
an average of 20 or more employees in a year, with 30 percent or more of those employees being
disabled people, reformed addicts, or people infected with HIV/AIDS;
• Income earned from occupational training activities specially reserved for ethnic minorities, people
with disabilities, children living in particularly difficult conditions, and reformed offenders;
• Aid funds receivable for use in educational, scientific research, cultural, artistic, charitable, humanitarian,
or other social activities in Vietnam; and
Preferential tax rate
A preferential tax rate of 10 percent (with no limit on the duration) will apply to enterprise income earned from
conducting socialization activities in the sectors of education and training, vocational training, medical health,
culture, sports, and the environment.
The duration of the preferential tax rates will be calculated from the first year the enterprise has turnover.
![Page 232: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/232.jpg)
232 ASEAN Social Enterprise Structuring Guide
f. Ongoing Governance and Regulatory Obligations
Requirements on receipt of donations
The regulations below apply to social enterprises under all forms of business establishment.
Receipt of aid must be made in writing to clearly record the information of the aid provider, the type of asset
and its value or the value of monetary aid, the duration of providing aid, requirements applicable to the
recipient enterprise, and the full names and signatures of authorized representatives of the parties.
Any receipt of foreign non-governmental aid or donation must be in accordance with Vietnamese regulations
on foreign non-governmental aid.
Corporate governance
A decision on termination of the social or environmental objectives of the social enterprise or revision of the
Commitment must be passed by members representing at least 75 percent of the contributed capital of
attending members at a members’ council meeting or by the chairman of the 1LLC SE, as the case may be.
Notification/reporting obligations
The regulations below apply to social enterprises under all forms of business establishment.
Upon the occurrence of any of the following events, the social enterprise must notify the licensing authority or
the agency managing aid under the provincial people’s committee in the locality where the social enterprise
has its headquarters:
• Any receipt of aid, within five business days after the date of signing the aid agreement. A copy of the
agreement must be enclosed;
• Any change to the aid agreement (the aid provider, the type of asset and its value or the value of
monetary aid, the duration of providing aid, requirements applicable to the recipient enterprise);
• Any change to the Commitment, within five business days after the date of the decision on the change;
• The termination of the Commitment, within five business days after the date of the decision on such
termination
In case the social enterprise receives aids, sponsorship, the social enterprise must submit an annual report on
the social impact of the activities it has undertaken to the licensing authority or to the agency managing aid
under the provincial people’s committee in the locality where the enterprise has its headquarters.
The report needs to include:
• Name of the enterprise and its code number;
• Items that are incentives, aid, and assistance received;
• Activities undertaken by the enterprise during the year, and the social or environmental issues which
it resolved; and
• Social benefits and achievements of the enterprise, and the group of entities [or subjects] who enjoyed
such achievements, including supporting evidence.
The social enterprise must also submit ad hoc reporting as requested by the licensing authority.
![Page 233: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/233.jpg)
233 ASEAN Social Enterprise Structuring Guide
Requirements on termination/dissolution/restructuring
The regulations below apply to social enterprises under all forms of business establishment.
Termination of Commitment: All residual assets or finance received in the form of aid or assistance must
be returned to the aid provider, or transferred to another social enterprise or organization with similar social
objectives. A social enterprise is only permitted to terminate its Commitment if it is deemed as able to fully pay
debts and other asset obligations after the return of residual aid or assistance has been factored in.
Dissolution: The residual assets or finance received by the social enterprise must be returned to the aid
provider, or transferred to another social enterprise or organization with similar social objectives.
Restructuring:
• Division or demerger: A social enterprise can be divided or demerged into a number of smaller
enterprise(s) and those enterprises established after the division or demerger shall be the social
enterprises.
• Consolidation: The consolidating enterprise(s) can be either ordinary enterprise(s) or social enterprise(s),
but the consolidated enterprise (after consolidation) must be a social enterprise.
• Merger: Either ordinary enterprise(s) or social enterprise(s) can merge into a social enterprise.
Member obligation/restriction on transfer of shares
• A member of the 1LLC SE (i.e., the owner) is only permitted to assign his/her capital contribution
portions in the social enterprise to other organizations or individuals who undertake to continue to
conduct the activities of the 1LLC SE for social or environmental objectives.
• A member of the 1LLC SE (i.e., the owner) will be liable for the refund of the incentives, aid, and
assistance received, and to pay compensation for loss arising from breach of Commitment by the
social enterprise.
g. Corporate structure
One or more persons are appointed as authorized representatives of the 1LLC SE.
If one person is appointed, he/she will be the chairperson and the 1LLC SE will be managed by the chairperson,
a general director, and an inspector(s).
If two or more persons are appointed, the 1LLC SE will be managed by a members’ council, the general
director, and an inspector or inspection committee. The general director manages the day-to-day business
operations of the 1LLC SE. The office terms of the general director, members’ council, and inspector(s) are up
to five years while there is no limitation on the maximum office term of the chairperson.
h. Governance
There are regulations governing the board composition of the 1LLC SE.
As discussed in item 1.1(g), if two or more persons are appointed to be the authorized representatives of
the owner, the 1LLC SE will be managed by a members’ council, the general director, and an inspector or
inspection committee.
There are no restrictions on a foreign citizen sitting on the board.
![Page 234: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/234.jpg)
234 ASEAN Social Enterprise Structuring Guide
i. Finance & fundraising
A social enterprise is permitted to raise and receive funding [aid] in various forms from individuals, enterprises,
non-governmental organizations, and other Vietnamese or foreign organizations in order to cover managerial
and operational expenses of the enterprise. Specifically, it is permitted to receive sponsorship in the form of
property, money, or technical assistance from domestic or foreign entities that have registered to operate in
Vietnam to resolve social and environmental issues.
There is a restriction that a social enterprise cannot use funding raised for purposes other than the purpose
of covering managerial and operational expenses in order to resolve social or environmental issues registered
by the enterprise.
For the tax implications for different finance/funding options, please see section 1.1(e) tax treatment.
![Page 235: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/235.jpg)
235 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 2 – SOCIAL ENTERPRISE UNDER THE FORM OF A MULTIPLE-MEMBER LIMITED LIABILITY COMPANY (MLLC)a. Overview
Similar to a conventional MLLC, a social enterprise in the form of an MLLC (MLLC SE) is an enterprise owned
by multiple organizations or individuals called members.
An MLLC SE may not have more than 50 members, and each member is liable for the debts and other property
obligations of the MLLC SE within the amount of capital that the member has undertaken to contribute to the
MLLC SE.
An MLLC SE can reduce its charter capital in the following cases:
• It returns part of a member’s capital contribution in its charter capital, provided that the MLLC SE
has carried out business activities continuously for more than two years from the date of enterprise
registration, and ensures payment of all of its debts and other property obligations after the capital is
returned to the member;
• It buys back a member’s capital contribution in certain cases stipulated under the LOE; or
The charter capital is not paid in full and on time by the members as required.
b. Advantages & disadvantages
Advantages
√√ The responsibilities and cost of investment of the MLLC SE are shared among members.
Disadvantages
√: Similar to a 1LLC SE, an MLLC SE may not issue shares, and may thus face limited access to financing.
c. Establishment process, documentation & costs
Similar to a 1LLC SE, a MLLC SE must register its establishment with the DPI of the city or province where its
head office is located in accordance with applicable processes, procedures and application file prescribed in
the LOE.
The application file must include (1) the registration application for establishment, similar to an application for
a non-social enterprise MLLC, and (2) the commitment to implement the social and environmental objectives
(Commitment) with details similar to that of a 1LLC SE.
The granting of the Enterprise Registration Certificate (ERC) and Investment Registration Certificate (IRC), if
any, for a MLLC SE is similar to a 1LLC SE.
An existing MLLC can convert into an MLLC SE by sending a written notification of its commitment to
implement its social and environmental objectives (i.e., the Commitment) to the DPI of the city or province
where the head office is located. The DPI will update its conversion of the social enterprise on the National
Business Registration Portal (NBRP).
![Page 236: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/236.jpg)
236 ASEAN Social Enterprise Structuring Guide
The government fee for the ERC is VND 200,000 (approx. USD 8.70) and for declaration of contents of
enterprise is VND 300,000 VND (approx. USD 13.05). The IRC is granted free of charge by the licensing
authority.
There is no fee for the conversion of an existing MLLC to a MLLC SE.
d. Liabilities
The same regulations apply to social enterprises under all forms of business establishment. Please refer to our
discussion in item 1.1(d) above.
e. Tax Treatment
The same regulations apply to social enterprises under all forms of business establishment. Please refer to our
discussion in item 1.1(e) above.
f. Ongoing Governance and Regulatory Obligations
A decision on termination of the social or environmental objectives or revision of the Commitment must be
passed by members representing at least 75 percent of contributed capital of attending members at the
meeting of the members’ council.
Notification/reporting obligations
These regulations apply to social enterprises under all forms of business establishment. Please refer to our
discussion in item 1.1(f) above.
Requirements on termination/dissolution/restructuring
These regulations apply to social enterprises under all forms of business establishment. Please refer to our
discussion in item 1.1(f) above.
Member obligation/restriction on transfer of shares
• A member of the MLLC SE (i.e., the owner) is only permitted to assign its capital contribution portions
in the social enterprise to other organizations or individuals who undertake to continue to conduct the
activities of the MLLC SE for social or environmental objectives; and
• A member of the MLLC SE (i.e., the owner) will be liable for the refund of the incentives, aid, and
assistance received and to pay compensation for loss arising from breach of Commitment by the social
enterprise.
g. Corporate structure
An MLLC SE must have a members’ council, a chairperson of the members’ council, and a director or general
director. The members’ council is the highest decision-making authority of the MLLC SE and will comprise
all members of the MLLC SE. Under the LOE, a company, including an MLLC SE, may have multiple legal
representatives but at least one legal representative must permanently reside in Vietnam.
An MLLC SE may also have an inspection committee, and if an MLLC SE has at least 11 members, an inspection
committee is mandatory.
Members’ council resolutions must be approved by votes representing at least 65 percent of the aggregate
capital of the attending members, and a higher percentage may be stipulated in the charter of the MLLC SE.
![Page 237: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/237.jpg)
237 ASEAN Social Enterprise Structuring Guide
Certain special decisions such as the sale of at least 50 percent of the assets of the MLLC SE, the amendment
of the charter, or dissolution of the MLLC SE will require 75 percent approval.
h. Governance
There are regulations governing the board composition of the MLLC SE. As discussed in item (g) above, the
members’ council must include all members of the MLLC SE.
There are no restrictions on a foreign citizen sitting on the board.
i. Finance & fundraising
Funding and/or investment regulations are similar to those of a 1LLC SE. Please refer to our discussion in item
(i) above.
Tax implications are also similar to those of a 1LLC SE. Please refer to our discussion in item (e) above.
LEGAL STRUCTURE 3 – SOCIAL ENTERPRISE UNDER THE FORM OF A SHAREHOLDING COMPANY (SC)a. Overview
Similar to a conventional SC, a social enterprise in the form of an SC (SC SE) is an enterprise in which the
charter capital is divided into equal portions called shares.
Shareholders may be organizations or individuals, with requirements for a minimum of three shareholders
and no restriction on the maximum number of shareholders. A shareholder is liable for the debts and other
property obligations of the SC SE only within the amount of capital it has contributed to the SC SE. With a few
exceptions, shareholders may freely assign their shares.
b. b) Advantages & disadvantages
Advantages
√√ An SC SE may issue ordinary shares and preferred shares.
√√ An SC SE may also issue bonds, convertible bonds, and other classes of bonds in accordance with the law and the charter of the SC SE.
Disadvantages
√: Founding shareholders must collectively subscribe to at least 20 percent of the ordinary shares at the registration date of the enterprise.
c. Establishment process, documentation & costs
New establishment
Similar to other forms of social enterprises, an SC SE must register its establishment with the DPI of the city or
province where its head office is located in accordance with applicable processes, procedures and application
file prescribed in the LOE.
The application file must include (1) the registration application for establishment of a non-social enterprise
SC, and (2) the Commitment with details similar to other forms of social enterprises.
![Page 238: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/238.jpg)
238 ASEAN Social Enterprise Structuring Guide
The granting of the Enterprise Registration Certificate (ERC) and Investment Registration Certificate (IRC), if
any, for an SC SE are similar to other forms of social enterprises.
Conversion of existing enterprise
An existing SC can convert into an SC SE by sending a written notification of its commitment to implement its
social and environmental objectives (i.e., the Commitment) to the DPI of the province where the head office
is located. The DPI will update its conversion of the social enterprise on the National Business Registration
Portal (NBRP).
Governmental costs
The government fee for the ERC is VND 200,000 (approx. USD 8.70) and for declaration of contents of
enterprise is VND 300,000 VND (approx. USD 13.05). The IRC is granted free of charge by the licensing
authority.
There is no fee for the conversion of an existing SC SE to an SC SE.
d. Liabilities
Please refer to our discussion of liabilities for LEGAL STRUCTURE 1 at item (d) above.
e. Tax Treatment
Similar to other forms of social enterprises. Please refer to our discussion for LEGAL STRUCTURE 1 at item (e)
above.
f. Ongoing Governance and Regulatory Obligations
Requirements on receipt of donation
Similar to other forms of social enterprises. Please refer to our discussion in item 1.1(f) above.
Corporate governance
An SC SE must hold a shareholders’ meeting at least once a year and all such shareholders’ meetings must
take place in Vietnam. If a shareholders’ meeting is concurrently held in multiple locations, the location of the
meeting will be the location where the chairperson of the meeting attends.
The annual shareholders’ meeting must take place within four months, or six months (if approved by the
licensing authority), of the financial year-end.
The quorum for a shareholders’ meeting is at least 51 percent of the total voting shares. Moreover, at least 51
percent of the voting shares present are required to pass a resolution. Resolutions on issues such as classes of
shares, number of new shares to be offered, amendments to the charter, reorganization or dissolution of the
SC SE, and sale of at least 50 percent of SC SE assets require 65 percent of the voting shares present.
A decision on termination of the social or environmental objectives, revision of the Commitment requires 65
percent of the voting shares present.
Notification/reporting obligations
Similar to other forms of social enterprises. Please refer to our discussion in item 1.1(f) above.
![Page 239: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/239.jpg)
239 ASEAN Social Enterprise Structuring Guide
Requirements on termination/dissolution/restructuring
Similar to other forms of social enterprises. Please refer to our discussion in item 1.1(f) above.
Member obligation/restriction on transfer of shares
• Shareholders of the SC SE are only permitted to assign their shares to other organizations or individuals
who undertake to continue to conduct the activities for social or environmental objectives.
• Shareholders of the SC SE are liable for the refund of the incentives, aid and assistance received and
payment of compensation for loss arising from breach of Commitment by the social enterprise.
• Shares are freely assignable, except that during the first three years of the term of the ERC, all ordinary
shares belonging to founding shareholders may only be transferred to other founding shareholders
unless approved by a shareholders’ meeting. These restrictions do not apply to additional shares
obtained by founding shareholders after enterprise registration, or to shares transferred to non-
founding shareholders with the approval of a shareholders’ meeting, as mentioned above.
• Share buyback/redemption in an SC SE compulsorily results in charter capital decrease. However, this
provision does not apply if otherwise stipulated in securities law. It thus appears that treasury shares
are permitted in respect of public companies.
g. Corporate structure
An SC SE may select either of the following organizational structures, unless otherwise stipulated in the Law
on Securities:
• Structure 1: (1) General meeting of shareholders, (2) board of management, (3) inspection committee,
and (4) director or general director. If the SC SE has fewer than 11 individual shareholders, and less
than 50 percent of the total shares are held by organizations, it is not required to have an inspection
committee.
• Structure 2: (1) General meeting of shareholders, (2) board of management, (3) internal audit
committee, and (4) director or general director.
The internal audit committee in Structure 2 is a new option introduced in the LOE. This committee is under the
board of management, but the LOE is silent on its specific rights and obligations as well as the criteria for its
members. It is our understanding that the internal audit committee, to some extent, plays the same role as
the inspection committee of Structure 1.
Under Structure 2, at least 20 percent of the members of the board of management must be independent
members, who are subject to relatively high standards. For instance, an independent member may not directly
or indirectly own 1 percent or more of the total voting shares, and cannot have been a member of the board of
management or the inspection committee for at least the last five preceding years.
The chairperson of the board will be the legal representative of the SC SE unless the charter specifies otherwise.
An SC SE must have at least one legal representative permanently residing in Vietnam. If the SC SE has more
than one legal representative, both the chairperson of the board and the director or general director will be
legal representatives of the SC SE.
![Page 240: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/240.jpg)
240 ASEAN Social Enterprise Structuring Guide
h. Governance
There are regulations governing the board composition of the SC SE. The board of management must have
from three to eleven members subject to the detailed stipulation under the charter.
The office term of each member is five years and members can be re-appointed.
There are no restrictions on a foreigner sitting on the board.
i. Finance & fundraising
Funding and/or investment permitted are similar to other forms of social enterprises. Please refer to our
discussion of LEGAL STRUCTURE 1 at item (i) above.
Tax implications are similar to other forms of social enterprises. Please refer to our discussion of LEGAL
STRUCTURE 1 at item (i) above.
![Page 241: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/241.jpg)
241 ASEAN Social Enterprise Structuring Guide
LEGAL STRUCTURE 4 – HYBRID / MULTIPLE STRUCTURESIt is not advisable for a social enterprise to have more than one legal form. Incentives are already provided to
social enterprises regardless of the legal form of business establishment.
TRANSITIONING BETWEEN LEGAL FORMSAn organization that is currently registered as a charity/NGO may transition to a social enterprise model. At
present, a social relief establishment, social fund, or charitable fund is permitted to convert itself into a social
enterprise upon a written approval of the competent authority, which is normally the authority that approved
their establishment. In this case, a new social enterprise will, after conversion, automatically be entitled to all
lawful rights and interests, and will be liable for all obligations such as debts, taxes, or the like, of its previous
non-social enterprise form.
![Page 242: ASEAN SOCIAL ENTERPRISE STRUCTURING GUIDE · 2018. 3. 8. · 3 ASEAN S E S G Social entrepreneurship has grown significantly across Southeast Asia in recent years, driven by a range](https://reader033.vdocuments.site/reader033/viewer/2022060602/605639b06823fb537e4aee38/html5/thumbnails/242.jpg)
www.trust.org